author: By CRAWFORD, J.

text:
    KLINE et, Plaintiffs, v. COLBERT et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 100,357.
    Decided September 16, 1947.
    Landis, Ferguson, Bieser & Greer, (Rowan A. Greer), Dayton, ■for plaintiffs.
    John A. Benjamin, Dayton, for defendants.
   OPINION

By CRAWFORD, J.

Plaintiffs, as individual home owners in the College Hill Plat, and as members of The College Hill Association which includes many other home owners in the same plat, on behalf of themselves, their fellow members and others-similarly situated, seek to enjoin the construction by the defendants of a prefabricated steel and porcelain Lustron house’ on Lot 230 in such plat, because of the failure of the defendants, Rita Colbert, owner, and Charles Colbert, her husband,, to obtain the approval of their building plans and specifications from The College Hill Improvement Company, developer of the plat, or from its successors or assigns, in accordance-with a building restriction appearing in her chain of title.

Passing for the moment the multitude of other questions-raised, let us examine all the restrictions contained in the deeds, pertaining to this plat. A brief summary of these is somewhat as follows: all lots in the sub-division are to-be used exclusively for private residence purposes (except part reserved for community enterprises); only one house-to accommodate not more than one family shall be erected on each lot in the particular section involved; only one house to accommodate not more than two families shall be erected in certain other sections; minimum costs are provided; setback distances from streets and sides of lots are specified; members and descendants of the Ethiopian race are excluded; manufacture and sale of intoxicants are banned; detached' garages are forbidden on corner lots; and, finally, there is-the restriction now challenged which reads substantially as follows: “The grantees hereby agree for themselves, their heirs and assigns, not to erect any structure on the herein described premises, unless the plans and specifications thereof shall have the written approval of The College Hill Improvement Company of Dayton, Ohio, its successors or assigns.”

On the basis of this last restriction approval of defendants’' plans and specifications has been withheld for the reason that the proposed structure is found not to be in harmony or in keeping with the existing residences and development-surrounding the lot in question.

We can perceive no fundamental distinction between this-situation and that in the case of Exchange Realty Company v. Bird, 16 Abs 391, wherein the Court of Appeals for the Ninth. District construed an almost identical covenant as authorizing the approving authority to determine only whether the proposed construction compllied with the other specific restrictions established for the plat. It was held that this did not confer any power to prescribe the materials to be used in the roof.

That court says (page 394):

“While such a restrictive covenant in a deed requiring the .submission to and approval by the grantor of all plans for the erection of a house is held to be a valid and enforceable covenant * * * — it will be noted that such a covenant is always used in connection with some general plan or scheme or some other designated or stated restriction within which .such approval may operate, or that the covenant regulates the scope of the approval * *

While the language in the covenant to the effect that “no such house” should be erected without approval was quoted by the court is support of the conclusion that the other restrictions constituted the only test, yet it is obvious that the decision did not rest alone upon such wording. For the court continues with this comprehensive statement:

“We find no decision or text to the effect that a covenant requiring the submission to and approval of plans by the grantor, standing alone, without any other restriction, is enforceable.”

The court goes on to say that restrictive covenants must be interpreted by gathering the intention of the parties from the entire context, that where the meaning is doubtful, consideration will be given to all the surrounding circumstances -at the time the contract was executed, “but the restrictions will not be extended by implication,” and must be strictly construed against the person seeking to enforce them.

Plaintiffs argue that the court was impelled to its conclusion because the specific covenants were so numerous and •detailed as to require an examining procedure. Upon careful reading of the decision, we must decline to accept this argument. The degree of detail provided in the other restrictions may strengthen but does not create the principle stated. Furthermore, as compared with ten specific restrictions there, we have as many as seven or eight here.

That case, decided in 1933, appearing never to have been challenged, remains the law of Ohio. It was followed, correctly it seems, in the case of Finlaw v. Jacobs, 30 O. O. 7. There Judge Schwab of the Hamilton County Court of Common Pleas likewise held that the requirement that plans be submitted and approval obtained could not be used to •enlarge other restrictions.

In our present case, also, the purpose in requiring submission and approval of plans is not explained, nor is there any definition of the standards to be applied or the scope of inquiry to be made, unless we gather them from the other specific restrictions.

Hence, plaintiffs’ contention that the standard to be applied is whether the proposed structure is harmonious and in keeping with the existing structures and surrounding conditions requires the extension of the restriction by implication.

Plaintiffs cite cases from other states to show that such restrictions have been upheld.

Two of these cases are definitely distinguishable .in that the restrictions quite fully and explicitly authorize the grantor to consider a proposed structure in the light of its suitability to its surroundings. The language used in the restrictions is almost identical in these two cases, namely, Jones v. Northwest Real Estate Company, 131 Atl. (Md.) 446 (1925) and Parsons v. Duryea, 158 N. E. (Mass.) 761 (1927). In the Jones case it is expressed as follows:

“* * * the party of the first part shall have the right to refuse to approve any such plans or specifications or grading plan, which are not suitable or desirable, in its opinion, for aesthetic or other reasons; and in so passing upon such plans, specifications, and grading plans, it shall have the right to take into consideration the use and suitability of the proposed building or structure and of the materials (of) which it is to be built, to the site upon which it is proposed to erect the same, the harmony thereof, with the surroundings, and the effect of the building or other structures as planned on the outlook from the adjacent neighboring property.”

In the Jones case the court expressed doubt whether plans could be rejected on purely aesthetic grounds, but held that under the restriction quoted above it was proper to reject them if “out of keeping with the surrounding structures and with the general appearance of buildings in Ashburton.”

These two cases are clearly distinguishable because of the clarity of the test and considerations to be applied.

The case of Peabody Heights Company v. Willson, 82 Md. 186 (1895), also cited, holds that a covenant to submit and obtain approval of “design” is enforceable, while denying specific performance of a contract for sale of real estate subject to such restriction.

The other case cited, Harmon v. Burrow, 106 Atl. 310, 263 Pa. 188 (1919), upholds and enforces a covenant providing simply for submission and approval of plans. It is somewhat difficult to perceive the practical effect of the decision. There is a suggestion that the grantor is permitted under this restriction to withhold approval of a duplex, a type of house not precisely forbidden by any other restriction. If so, the restriction is extended by implication.

However contrary these latter two cases may be to that of Exchange Realty Company v. Bird, supra, they are neither sufficiently recent nor convincing to offset the compelling force of the above decisions in our own state.

We pass next to the question whether, even if the expressed restriction is inadequate and therefore unenforceable as framed, there was such a general scheme or plan of which the defendants had or are charged with notice, (13 O. Jur. 985, Deeds, Paragraph 169) as would bind them to obtain an approval, which might be granted or withheld upon considerations of harmony with surroundings.

It appears to be agreed that there is now a total of 635 lots in the plat, which was originally established by The College Hill Improvement Company on May 10, 1924, revised in 1925, and again in 1928; that there are no restrictions on the recorded plat, but that by deed all of the other restrictions above mentioned were established.

It appears from the evidence that an undetermined number of lots, designated as “a few,” (defendants say 17), were originally sold without the restriction in question; that in 1927, pursuant to an agreement or understanding between the company and individual lot owners, deeds were thereafter issued to purchasers containing this restriction, and prospective purchasers were advised of same; that ultimately it was contained in deeds to 141 lots either sold or retained by the developer, including Lot No. 230; that plans and. specifications were accordingly presented to The College Hill Improvement Company by individual purchasers and owners of such lots; that Colonel John G. Griggs, secretary of the company, passed upon the same, and, in so doing took into consideration whether or not a proposed structure was suitable to its environment, and was of comparable quality and compatible style in conformity with its surroundings, although no uniform style of architecture was sought or required; that subsequently The College Hill Improvement Company went into receivership, holding title to 423 lots on which the restriction was never placed; and that there were at the time some additional lots retained by the Gardner Company, also managed by Colonel Griggs, upon which the restriction was apparently never placed.

Subsequent to the appointment of a receiver, there was apparently little construction upon the plat until after large numbers of the lots were sold on tax foreclosure sale. Several houses (perhaps 25) were then built, about 1947; and a suit for declaratory judgment was begun in this court on October-9, 1947, being Case No. 98227.

In that suit certain lot owners seek to have defined the-rights of all parties under the restrictive covenants. The court therein appointed Mr. Rollin L. Rosser, an architect of recognized standing and ability, to pass upon plans. Eight sets of plans for eight lots were submitted. Considerable confusion has arisen as to the precise duties of Mr. Rosser, the-standards he should apply and the questions he should determine, all resulting from uncertainty as to the force and meaning of the covenant now before us.

The defendants submitted their plans to Mr. Rosser, who-rejected them as inharmonious and incompatible with their surroundings. Further hearing on these plans was begun before Judge Don R. Thomas of this court, but no approval was given. Thereafter the defendant, Rita Colbert, obtained her deed, but has delayed construction awaiting a decision in. the present case.

Before proceeding to a consideration whether, as defendants contend, plaintiffs have been guilty of laches, or have abandoned any general scheme or plan, or whether the nature of the plat has so substantially changed as to render the restriction no longer enforceable, let us first consider whether there was a general scheme or plan with respect to approval actually in existence prior to the receivership.

Apparently the agreed practice was followed of submitting plans and specifications to Colonel Griggs for approval. He says he did not seek uniformity of architecture, but harmony and suitability of design to surroundings.

What then was the general scheme or plan? Simply Colonel Griggs’s taste and judgment in a multitude of individual cases. However excellent his decisions may have been, they could hardly create a demonstrable general plan. And such result could scarcely be attained unless he were actually to design or prescribe the design for each house. The only thing that was concretely uniform was the practice of submission and approval of plans as specified in the deeds and agreement.

We are therefore left only with the requirement of submission and approval, which has been declared too vague and indefinite to be enforced. Quoting again from Exchange Realty Company v. Bird, supra, (page 394):

“If this language were the only restriction in the deed, it surely would be entirely too vague and indefinite to be enforceable in a court of equity, and would be totally ineffective, as standing alone it would be devoid of any general plan or scheme, would be unlimited in its scope, and would leave the purchaser subject to the mere whim of the seller and permit the seller to require a structure of any kind or value to be erected on any lot, and could result in a mere shack being built on one lot, and a palatial dwelling on an adjoining lot; or the seller might require any other kind of building, business block or factory to be built on any particular lot. The purchaser would thus have nothing of value; and such restrictions would therefore seem to be against public policy and be void.
“It is thus evident, to give meaning and effect to such language, it must be used in connection with and confined within other restrictions and limitations and construed with them as a whole.”

Hence, in the light of the present authority in Ohio, there is no enforceable covenant established, either by the language of the deeds in defendants’ chain of title or by practice in the plat, requiring submission and approval of plans for determination or anything other than compliance with the specific restrictions.

Therefore, we do not reach the questions of laches, waiver, or substantial change in the nature of the plat.

In justice to Mr. Rollin L. Rosser, architect, it must be said that he has earned the commendation and gratitude of the court for having performed a difficult task under trying circumstances with the high integrity and proven ability for which he is known and respected. It is unfortunate that he should have been subjected tó the trivial annoyances which are so often engendered in the heat of contest.

The comparative merits of Lustron and conventional housing are not before us. But the obvious fact that Lustron is a new and distinct product, its sponsors would probably be the first to proclaim. In promoting its acceptance, especially where it is vigorously opposed, they might care to ponder the ancient adage which warns against pouring new wine into old bottles, which is often disastrous alike to the vessel and to its contents.

And these young and apparently amiable defendants are reminded that a privilege so eagerly sought today may turn to bitterness tomorrow; that while occupying a house they must also dwell in a neighborhood.

These are but suggestions, intended to be helpful, which equity cannot enforce. They lie beyond the power of the court, in the realm of conscience.

The prayer of the petition must be denied.


source: Caselaw Access Project

author: By WOODS, Referee.

license: Public Domain

text:
    WALKER, In Re Bankruptcy.
    In the District Court of the United States for the Northern District of Ohio Eastern Division.
    No. 66547.
    Decided March 7, 1950.
    Frank S. Culp, Mansfield, for trustee.
    Marriott & Freehafer, Mansfield, for bankrupt.
    W. L. Metzger, Columbus, for Veteran’s Administration.
   MEMORANDUM OF REFEREE

By WOODS, Referee.

Bankrupt is a porcelain enameler, a World War II veteran, married, father of three children; and claims as exempt his dividend under his National Service Life Insurance Policy, being a check for $121 received by him from the Veteran’s Administration. At the hearing herein, the check was delivered to Joseph H. Ellison, trustee in bankruptcy, who holds it awaiting the determination of the Bankruptcy Court as to his right to have the check, known as a benefit, as exempt under the provisions of the Bankruptcy Law.

Exemptions to bankrupts are allowed which are prescribed by the laws of the United States or by the State Law in force at the time of the filing of the petition, Bankruptcy Act, Sec. 6; and the decision of the State Courts is followed by the Bankruptcy Court in the interpretation of the State Exemption Laws when determining exemptions as authorized in Sec. 2 (11).

Sec. 11738 GC provides that the head of a family may hold as exempt in lieu of a homestead $500 in value, but that such exemptions shall not be made or allowed “from money, salary or wages due to him from any person, partnership or corporation”. The question is whether this benefit received by him as a veteran under his National Service Life Insurance policy is an exemption within the above language.

In Ohio it was held that a bank account constituted money due and therefore could not be claimed as an exemption under Sec. 11738 in Morris Plan Bank v. Viona, (1930) 132 Oh St 28. This does not determine the question presented whether a veteran’s benefit from a National Service Life Insurance Policy comes within the expression “money, salary or wages due him from any person, partnership or corporation”. It appears that a question was determined in Ohio as to United States Government Bonds in the Court of Appeals of Wayne County in Trautman v. Eichar, (1940) 64 Oh Ap 415, where a judgment debtor claimed a Government Bond as exempt in lieu of a homestead, under the above section.

While the question here concerns a benefit to bankrupt from his veteran’s life insurance policy it would appear that the decision of an Ohio Court of Appeals is in point. As a matter of public policy a statute which grants exemptions to a head of a family should receive “as liberal a construction as can be fairly given to it”. As Judge Doyle said on page 421 in the above case:

“The words ‘person or corporation’ do not in their ordinary signification mean a sovereign government. And in giving a liberal construction to the exemption statutes in favor of the exemption claimant, we find no ground to justify an extension of the ordinary meaning of the words used.”

The court sustained the right of the judgment debtor to hold in lieu of a homestead the Government Bond issued in her name in the amount of $500. Such was- the holding of this Referee In Re Lawrence Keith Cullen, No. 61224, a bankruptcy case in this court. This disposes of the question of Government Bonds as exempt under the Ohio Statute and would seem persuasive in the case at bar.

The Congress has also enacted the statute as to the exempt status of benefits to a veteran under his life insurance policy. Section 616, National Service Life Insurance Act, as amended, (Section 816, Title 38, U. S. C. A.), provides in part that:

“The provisions of Public Law Numbered 262, Seventy-fourth Congress,‘approved August 12, 1935 (49 Stat. 607), and titles II and III of Public Law Numbered 844, Seventy-fourth Congress, approved June 29, 1936 (49 Stat. 2031), insofar as, they are applicable, shall apply to the provisions of this part: ⅜ * *.”

Section 3 of Public Law 262, 74th Congress, (Section 454a, Title 38, U. S. C. A.), contains the following:

“Payments of benefits due or to become due shall not be assignable, and such payments made to, or on account of, a beneficiary under any of the laws relating to veterans shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary. * *

Counsel for bankrupt and the solicitor of the Veteran’s Administration urge that under said statutes dividends payable on policies of National Service Life Insurance are benefits and “under any of the laws relating to veterans”, within the meaning of Section 3 of Public Law 26-2, supra.

Thus upon consideration of the Ohio Law on exemptions and the Federal statutes as to veteran’s benefits, it would appear that the rule to be applied is that said dividend payable to this bankrupt is exempt and an order to that effect should be entered.

This conclusion is supported by the recent case of Wissner v. Wissner, 94 Law Ed. U. S. Supreme Court 332, decided February 6, 1950, where the court reversed a California Court which had held that a veteran’s widow was entitled to the half of the proceeds of her husband’s veteran’s insurance as community property. While the question of community property seemed to be the main issue, what the Court stated about exemptions to veterans under the Federal Statute is pertinent here, for Mr. Justice Clark said:

“The judgment under review has a further deficiency so far as it ordered the diversion of future payments as soon as they are paid by the Government to the mother. At least in this respect, the very payments received under the policy are to be ‘seized’ in effect, by the judgment below. This is in flat conflict with the exemption provision contained in 38 USCA Sec. 454a, FCA title 38, Sec. 454a, made a part of this Act by 38 USCA Sec. 816, FCA title 38, Sec. 816: Payments to the named beneficiary ‘shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary * * *.’ ”

The interest of a Federal Service employee in the Federal Retirement System, In Re Barry (D. C. N. Y. 1943) 52 Fed. Sup. 492, 55 ABRNS 515 was held exempt. Another recent case involving Sec. 454a is that of Pishue v. Pishue (Wash.1949) 203 P 2d 1070, where in a divorce case the State Supreme Court held the rights of a veteran to a fund furnished under the Veteran’s Administration as a disability allowance to an incompetent veteran to be exempt.

This dividend or the “benefits” from the National Service Life Insurance Policy of the veteran should be held to be exempt and an order may be entered to that effect.


author: By HORNBECK, J:

text:
    STATE, Plaintiff-Appellee, v. JOHNSON, Defendant, and STOCKUM, Defendant-Appellant.
    Ohio Appeals, Second District, Darke County.
    No. 676.
    Decided December 3, 1949.
    T. A. Billingsley, Greenville, for appellant.
    Howard G. Eley, Pros. Atty., Greenville, for plaintiff-appellee.
   OPINION

By HORNBECK, J:

The defendant, Wallace J. Johnson, whom we hereinafter refer to as defendant, was indicted for unarmed robbery. He entered a plea of not guilty and the court fixed his bond at $10,000. This bond was given and, although we do not have it or a copy of it before us, counsel agree that it was signed by the defendant and J. C. Spidel and E. R. Stockum as sureties. We hereinafter refer to E. R. Stockum, as Stockum, or- the appellant. The entry fixing the amount of the bond was dated February 14, 1949.

On June 1, 1949, an entry was filed wherein it appears that the defendant withdrew his plea of not guilty and entered a plea of guilty. Recommendation was made that a Probation Officer be appointed. He was appointed to enable the court to determine whether or not the defendant “is entitled to the benefits of probation”. The entry also provides, “It is further ordered by the court that the bond of the defendant in the sum of $10,000.00 be continued”, and the cause was continued. On the same day, and one minute after the filing of the entry just recited, J. C. Spidel filed his application in which he stated that he withdrew from the bond, asked that the same be terminated and moved the court for an order directing the issuance of a warrant for the arrest of the defendant. On the same day, and one minute thereafter, the following entry was filed:

“This day, upon application of J. C. Spidel, one of the sureties on the bond of Wallace J. Johnson, defendant herein, to withdraw from said bond and for termination of same, it is ordered by the court that said bond be terminated and that a warrant issue to the sheriff of Darke County, Ohio, for the arrest of Wallace J. Johnson.”

This entry is signed by the Judge, the Prosecuting Attorney and the attorney for the surety, Wilbur D. Spidel.

It may be assumed that the entries of June 1st set forth proceedings and orders which occurred almost simultaneously and when made the defendant was in open court.

On the same day, namely, June 1st at 1:10 P. M., a bond was filed in the sum of $10,000.00, conditioned that defendant, Johnson, be and appear before said Court of Common Pleas on the — day of -, 19 — , then and there to answer the charge of robbery and abide the order and judgment of the court, and appear from day to day and not depart without leave until such case is finally disposed of, * * *. In the body of this bond there is found this language:

“Said bond is secured by certified check of E. R. Stockum drawn on the Second National Bank ’of Greenville, Ohio, under date of June 1, 1949, in the sum of Ten Thousand ($10,000.00) Dollars.”

The bond is signed by Wallace J. Johnson only. The record is silent as to what was done with this check but it is stated in one. of the briefs that the Clerk cashed it the day succeeding its receipt by him. The bond just described is placed in the transcript of docket and journal entries ahead of the order terminating the bond originally given but, as we interpret the time on the file marks, the termination entry preceded the giving of the second bond.

The Probation Officer made his report and thereafter on July 2, 1949, Stockum signed and filed this request:

“The undersigned, Roy Stockum, surety upon the recognizance heretofore given in this case for Wallace J. Johnson, hereby requests you, as Prosecuting Attorney to cause a warrant to issue to the sheriff of Darke County, Ohio, at once, directing him to arrest the said Wallace J. Johnson and bring him before the court as this surety desires to be released from the said bond. This notice is given you in accordance with the provision of §13435-16 GC.”

Thereafter, and on July 7, 1949, an entry was filed wherein it appeared that the cause came on for hearing, that inquiry was made as to the presence of the defendant, the formal calling of the defendant in open court is recited, and then follows this significant language:

“It is, therefore, ordered, adjudged and decreed by the court that the default of appearance of the defendant, Wallace J. Johnson, be duly recorded, and that the cash bond given herein by the said Wallace J. Johnson in the sum of $10,000.00, be declared forfeited.”

The entry continues that it appearing that E. R. Stockum had by the wording of the official bond supplied the sum of $10,000.00 cash to the defendant, which said sum was deposited with the clerk of this court as a cash bond; and it further appearing that E. R. Stockum had on July 2, 1949, represented himself as surety and made request for a warrant to issue for the arrest of the defendant, inquiry was made as to his whereabouts and objection was made by counsel for Stockum to the form of the bond.

The objection of appellant to the bond was overruled and continuance of twenty days granted with the order to the clerk to notify Stockum to appear on the 29th day of July, 1949, at 1:30 P. M. and produce the body of defendant or show cause why judgment should not be entered for the' sum of $10,000.00, that being the amount posted in cash as bond herein. Succeeding this entry, and of date July 8th, appellant filed a motion consisting of three branches to set aside and vacate all that part of the foregoing entry of July 7 declaring forfeiture of the bond of June 1, 1949, for the reasons (1) that the bond was not ordered by the trial judge as provided by §13435-3 GC, (2) that the bond was not given in pursuance of any order of the court, which order provided for the continuance of the prior bond of $10,000.00, and (31 that the bond given after a plea of guilty could only be given by and in accordance with the orders of the trial judge. This motion was overruled on July 28th and on July 29th, appellant filed an answer setting up substantially the same objections to the order of June 1st as were carried in the motion which had just been overruled.

Thereafter, on August 6th, the final entry was filed which makes no mention of the answer but recites that the cause came on to be heard on the orders of July 6th and July 26th. This entry “decreed that judgment on the forfeited bond be awarded against Wallace J. Johnson and E. R. Stockum”.

The errors assigned are substantially those heretofore stated in the motion of appelllant, of date July 8th.

The notice of appeal is directed to the judgment and order entered August 1, 1949. There is no order of that date but if we can determine the judgment from which the appeal is meant to be prosecuted we will consider it and the notice may be amended accordingly. Mosey v. Hiestand, 138 Oh St 249. The last order prior to the notice of appeal is dated August 6, 1949, and we will presume that this is the order from which the appeal is taken. But the errors assigned relate not only to the action of the court as found in the entry of August 6th in “granting final forfeiture of the bond” but also in overruling the motion of appellant to set aside and vacate the order of July 7th wherein the court ordered, “that the cash bond given by Wallace J. Johnson be declared forfeited”. The order of July 7th is a final order wherein the cash bond of $10,000.00 is declared forfeited.

The appeal would present several interesting questions, if urged, such as the status of the appellant upon the second bond inasmuch as he did not sign it but provided the check which was converted into a cash bond. Isbell v. Houghton (Mich.) 16 A. L. R. 974. Is a judgment necessary following forfeiture against one who had provided cash bond for the accused? May the motion to set aside the order forfeiting the bond be considered as presenting a possible error for review in view of the fact that no ground is assigned under §11631 GC or any other that was not known when the forfeiture was ordered? As counsel for the appellee raises none of these questions, we waive them and pass upon the errors, assigned.

It is urged by the appellant that there was no sufficient, order of the trial judge to support the acceptance of the second bond by the clerk. The order as to the first bond was. in usual and appropriate form. The language of the entry reciting the order upon which the second bond was taken, is, “The bond of the defendant in the sum of $10,000.00 to be continued”. This could mean that the bond then on file with the clerk should be continued or that a bond in the amount, and upon conditions as before ordered should be continued. It is not probable that, with knowledge of the application of the surety, Spidel, to be relieved from the first bond and of the presence of defendant in open court, the trial judge-would ignore this application and order the bond still binding upon Spidel to be continued. The language of the entry-does not require the construction that no new bond was in contemplation of the judge when the order was made. It was not necessary in the first instance that the judge specifically direct the clerk of his court to take any particular bond, the amount having been fixed, that being a ministerial duty, §13435-1 GC, nor was it necessary, the amount of the-bond being fixed, to make a more specific order as to the second bond. Sec. 13435-2 GC.

We are cognizant of the fact that the language of the second bond, which is in form that prescribed by §13435-9 GC,, does not completely meet the situation existing at the time that the new bond was given because the defendant had then been convicted by his plea of guilty of the offense with which he was charged. However, no sentence had been pronounced upon the conviction. But the language of the statute carried into the bond, though not exact, further provided that the defendant abide the order and judgment of the court, * * *, and appear from day to day and not depart without leave until such case is finallly disposed of. This last condition of the bond was violated. No defect in the form of the-bond shall bar or defeat an action for judgment on it.Sec. 13435-22 GC.

Counsel places dependence upon In Re: Thorpe, 132 Oh St 119. In the cited case the accused had been convicted and sentenced but the trial judge had refused to suspend execution of the sentence and to fix bond pending error proceedings. Thorpe insisted that he was entitled to be released on bail as a matter of right and that such bail would have the effect of suspending execution of the sentence. The Supreme Court held that §13435-9 GC assures the benefit of bail to a convicted person only after sentence and order of suspension thereof which, if made, will authorize either an order requiring a new bond or continuance of the bond given before trial and conviction. See also In Re: Thorpe, 23 Abs 112. The Thorpe case does not control in the factual development here.

It is the claim of the Prosecuting Attorney that the original bond was effective at all times prior to final judgment and that it had not been terminated. This position can not be maintained in view of the judgment entry of June 1, 1949, expressly terminating it. The action taken must be based on the second bond.

It is our conclusion that no error assigned and urged in the brief of appellant is established. The judgment will therefore be affirmed.

MILLER, PJ, and WISEMAN, J, concur.


author: By BREWER, J.

text:
    LANZA, Exr., Plaintiff, v. DiFRONZO et, Defendants.
    Probate Court, Cuyahoga County.
    No. 405770.
    Louis R. Lanza, Cleveland, for Executor, Robert F. Lanza.
    Sidney A. Thorman, Cleveland, for Michele DiFronzo, ■Guiseppi DiFronzo and Angelina DiFronzo.
    Feighan & Feighan, Mann & Barber, Cleveland, for St. Therese Church.
   OPINION

By BREWER, J.

This cause came on to be heard on the petition for the construction of the last will and testament of Antonio DiFronzo, deceased. The Court has been asked to interpret Item 15, which provides as follows:

“The balance of my estate to go for Masses for the repose of the souls of myself and by beloved wife, Maria DiFronzo.”
Certain non-resident defendants, by way of answer, maintain that the instrument 'under consideration “is not a charitable or religious bequest, and that by reason thereof, the doctrine of cy pres does not apply; that Item 15 is ambiguous, uncertain, without beneficiary who might enforce same, and by reason thereof, the said answering defendants, the next of kin and heirs at law of the decedent are entitled to the residuum or balance of the estate of said decedent.”

The defendant, St. Therese Church, in its answer, maintains the residuary bequest is valid, and asks the Court to determine that St. Therese Church is the organization entitled to all the benefits as provided by Item 15.

The cardinal rule for construction of a will is for the Court at all times to ascertain and give effect to the true intention of the testator gathered from the will as a whole, and the Court should go far in trying to place himself in the position of the testator at the time of his making the will. To accomplish this, parol evidence is often permitted to show decedent’s relationship with and affection for those persons who are the natural objects of his bounty. These general rules of law have been so often reiterated by the courts of this State, that citations of authority are unnecessary.

Applying them in the light of testimony offered in the case at bar, we find that the decedent, Antonio DiFronzo, had lived in Garfield Heights for many years; that his wife predeceased him; and that there were no surviving issue of the marriage; that the decedent’s father and mother were both dead; and that his nearest next of kin were one sister and nieces and nephews, most of whom reside in Italy, and whom the decedent had not seen for some years.

The testimony discloses further that both the decedent and his wife were devout Catholics, and clearly established that for many years the decedent and his wife were members and regular attendants of St. Therese Church. When both the decedent and his wife died, the last rites were administered to them by the Pastor of St. Therese Church, and their funeral services were conducted in St. Therese Church.

Evidence was offered by the pastor and assistant pastor of St. Therese Church relative to Canon Law, disclosing that membership in various parishes is determined as the result of boundaries, and that if a member desires to be a member of another church not within his parish, he must receive special permission, which is disclosed on the Parish Church’s records. In the instant case it was admitted that the census cards of both the decedent and his wife would establish that they had for many years prior to their deaths been members of St. Therese Church. All of the foregoing testimony is undisputed.

Summing up the evidence, it can be logically concluded that the decedent and his wife were primarily devoted to their church and the faith it represented. It can further be concluded that the motivating force which made the decedent deeply religious during his life, created the desire on his part that after his death a major portion of his estate be used for the repose of the souls of his wife and himself. This he attempted to do by leaving his residuary estate for the saying of Masses.

The question in the main, therefore, is whether a gift for the saying of Masses is valid in Ohio. There appears to be but two reported cases relative thereto in this State. Neither ■of these provide any guidepost for the Court in seeking the rule of interpretation applicable to the instant controversy.

In Fugmann v. Theobald, 12 C. D. 720, the, Court in a two-line paragraph decision found a bequest to a pastor of a Roman Catholic Church for the saying of Masses was not a gift for charitable use under the statute then in effect, §5915 GC, now §10504-15 GC. In reversing the lower Court in part (see 4 O. D. 65) it in fact sustained the gift for the saying of Masses, by holding that it was a gift to the Pastor rather than a charitable bequest, because holding otherwise would have invalidated the gift, it having been made within one year from the date of testator’s death. Although this may be considered legal gymnastics, it demonstrates how far a Court will go to sustain a gift of this type.

The other reported case is the Estate of Riley, 138 Oh St 145. The question decided in that ease was whether a gift for the saying of Masses was taxable. The finding by the Supreme Court was an affirmation of the decision of this Court, in which this case had its origin, and at the time that case was decided, the question of whether gifts for Masses were a charitable use was not considered.

On February 14, 1938, this Court in an unreported decision (Case No. 244751) in a matter to construe a will, (Margaret M. Dempsey v. Christ the King Church) found that income to be used for the saying of Masses created a valid charitable trust.

This Court is asked by the next of kin to “reverse its decision in the Dempsey case”. It would appear to this Court that if the true nature of Masses were explained and the designation of the object of the payment made clear, there would be no room for any opinion other than that a gift for Masses is charitable. Gifts for Masses have been known to law for many centuries. Political consideration, at the time of the reign of King Edward VI, for the first time were held to be invalid under ecclesiastical and common law. Prior to that time such gifts, through the continent, had been held to be for a charitable purpose and religious use.

When Edward VI ascended the throne such gifts by statutory enactment arising out of political considerations were held to be invalid and the property conveyed thereby was forfeited to the crown. The theory behind the legislation was that such gifts were for superstitious uses and not for legitimate charitable purposes.

In the United States the doctrine of superstitious uses relative to masses has never been recognized. See Vol. 3, Page on Wills, Sec. 1221. Vol. 1 Scott on Trusts, par. 124.4, and Vol. 3 Scott on Trusts, 371.5.

Relative thereto, in Delaware Trust Co. v. Fitzmaurice, 21 Atl. Rep. (2d) 388, the Court said:

“* * * Whatever might have been the real basis of the later English rule, that such a gift was for a superstitious use, and, therefore void, that rule can have no place in a State that recognizes and guarantees that right of religious freedom to all.* * *”

Careful study of Canon Law and judicial decisions would disclose that the Roman Catholic Church regards Masses as a sacrifice to God.

In In re Kavanaugh’s Estate, 126 N. W. Rep. 672, on page 675, the Court stated:

“According to the doctrine of the Catholic Church as established by the proof in this case, the whole church profits by every Mass, since the prayers of the Mass include all of the faithful, living and dead. The sacrifice of the Mass contemplates that all mankind shall participate in its benefits and fruit. “The Mass is the unbloody sacrifice of the cross and the object for which it is offered up is in the first place, to honor and glorify God; secondly, to thank Him for His favors; third, to ask His blessing; fourth, to propitiate Him for the sins of all mankind. The individuals who participate in the fruits of this Mass are the person or persons for whom the mass is offered, all of those who assist at the Mass, the celebrant himself, and for all mankind, within or without the fold of the church.’ So it seems clear upon reason and authority, under the doctrine of the Catholic Church as established by the evidence in this case, that a bequest for Masses is a ‘charitable bequest’, and valid as such, although the repose of the souls of particular persons be mentioned. * * ⅜”

According to The Canon Laws of Wills, page 402, paragraph ■673, Father Hannan states:

“A Mass can not be bought, because its infinite supernatural value transcends any equivalent in material wealth. The priest has the power to offer this sacrifice; the layman, not. The latter can not buy the favor, and the former can not sell it. But by accepting the gift of the latter, the former binds himself to bestow the favor on the donor rather than on some other man who has not shown benevolence to him. * * ⅜”

The Courts seem united in the opinion that the saying of masses, according to the Catholic theory, is for the betterment of all persons. In Delaware Trust Co. v. Fitzmaurice, supra, we find:

“* * * The celebration of Masses is publicly conducted, and the religious benefit conferred is, therefore, regarded by the Roman Catholic Church as general and public, and not confined to the soul of the person for whom they are said. * * *”

In the case of In re Kavanaugh’s Estate, supra, the Court, considering the evidence, found;

“* * * it was shown by competent evidence that the sacrifice of the mass is a public service, not alone for the repose of the souls of the deceased members mentioned, but for the benefit of all mankind, and so understood by all members of the Catholic Church. So while the Masses may be intended to benefit the souls of the departed mentioned, the benefits are public as well, therefore, come within the designation of a public charity. Masses are religious observances and come within the religious or pious uses which are upheld as public charities. Schouler, Pet. 134 Mass. 426; Rhymer’s Appeal, 93 Pa. 142, 39 Am. Rep. 736; Hoeffer et al. v. Clogan et al, 171 Ill. 462, 49 N. E. 527, 40 L. R. A. 730, 63 Am. St. Rep. 241; Webster v. Sughrow, 69 N. H. 380, 45 Atl. 139, 48 L. R. A. 100; Seda et al v. Huble, et al, 75 Iowa 429, 39 N. W. 685, 9 Am. St. Rep. 495; Sherman v. Baker, 20 R. I. 446, 40 Atl. 11, 40 L. R. A. 717. * * *”

The general rule in the United States is well set forth in 10 American Jurisprudence, Sec. 59, page 627:

“* * * Moreover, regardless of the view which has been taken as to the nature of such gifts, they have generally been held to be valid in the United States. It is recognized by many of the American authorities that a gift for the saying of Masses is a valid charitable trust. These cases are based on the reasoning that the saying of mass is a ceremonial celebrated by the priest in open church where all who choose may be present and participate therein, a solemn and impressive ritual form from which many draw spiritual solace, guidance and instruction. It is religious in its form and in its teaching, and clearly comes within the class of trusts or uses denominated in law as charitable. While the effect of these services upon the members of this church is impressive and beneficial, the money expended for the celebration thereof is of benefit to the clergy, and such a trust is to be upheld and maintained for this reason as one of the cherished objects of religious uses. In one jurisdiction it has been held, modifying an earlier view, that a gift for Masses is a gift for the benefit of all mankind and, therefore, valid as a charity. * * ⅝”

We come now to the question as to whether Item 15 is ambiguous, uncertain and without beneficiary who might enforce the same.

This Court has benefited by a very recent decision of United States Court of Appeals for the District of Columbia, in Sedgwick v. National Savings & Trust Co., 130 F. R. (2d) 44, decided on July 13, 1942, in which the similarity of facts to those at bar are striking. The will of the testator provided:

“Item III. All of the rest, residue and remainder of my estate and property, of whatsoever character, whensoever acquired and wheresoever situate, including all estate and property to or in which I shall have any right, title, claim or interest whatsoever at the time of my death, I give, devise and bequeath, in fee simple and in absolute estate, unto the Holy Name Cathedral, State and Superior Streets, Chicago, Illinois, for Masses for the repose of my soul.”

A niece of the testator sought a construction of this clause of the will, alleging that Item III was impossible of administration by reason of uncertainty and ambiguity.

The Court stated:

“(1) We have no doubt that a trust for the saying of Masses for one’s soul or for the souls of others — if otherwise valid— is good as a charitable trust. Matter of Kavanaugh’s Will, 143 Wis. 90, 126 N. W. 672, 28 L. R. A., N. S. 470; Re Estate of Hamilton, 181 Cal. 758, 186 P. 587; Hoeffer v. Clogan, 171 Ill. 462, 49 N. E. 527, 63 Am. St. Rep. 241; Gilmore v. Lee, 237 Ill. 402, 86 N. E. 568, 127 Am. St. Rep. 330; Coleman v. O’Leary’s Exr., 114 Ky. 388, 70 S. W. 1068; Obrecht v. Pujos, 206 Ky. 51, 268 S. W. 564; Re Schouler, 134 Mass. 426; Webster v. Sughrow, 69 N. H. 380, 45 A. 139, 48 L. R. A. 100; Kerrigan v. Tabb, N. J. Ch. 39 A. 701; Moran v. Kelley, 95 N. J. Eq. 380, 124 A. 67, affirmed 96 N. J. Eq. 699, 126 A. 924; In re Morris, 227 N. Y. 141, 124 N. E. 724; Rhymer’s Appeal, 93 Pa. 142, 39 Am. Rep. 736; O’Donnell’s Estate, 209 Pa. 63, 58 A. 120.
“Professor Bogert states the general rule as follows: ‘In nearly all American states where the question has arisen, a trust to spend capital or income for Masses for the soul of the testator, or his relatives, or the souls of other definite persons, or the souls of a class of deceased persons, or the =souls of the deceased indefinitely, no matter of what duration the trust may be, will undoubtedly be upheld as a charitable trust for religious uses.’ Bogert, Trusts and Trustees, Vol. 2, p. 376, p. 1191.
“(2) Counsel for appellant do not contest this proposition, but insist that the bequest involved here is void because the Holy Name Cathedral is an unincorporated body and that therefore it is impossible for the court to determine whether the bequest is to the church building or to the Catholic Bishop of Chicago who, as a corporation sole, has title thereto. On this premise, they further argue that there is no possibility of uncertainty as to who should say the Masses — whether the priests of the Cathedral or the Bishop — and that this uncertainty is naturally an uncertainty as to the trust itself. But we think this construction would be straining the universal rule in relation to charitable trusts. It is enough if the donor sufficiently describes the nature and purposes of the trust, and in general terms the class of beneficiaries. In Darcey v. O’Brien, 62 App. D. C. 151, 65 F. 2599, we said, following Russell v. Allen, 107 U. W. 163, 2 St. Ct. 327, 330, 27 L. Ed. 397, ‘if the founder describes the general nature of a charitable trust, he may leave the details of its administration to be settled by trustees under the superintendence of a court of chancery.’

And, continuing:

“* * ⅜ Considered, therefore, from the viewpoint of intent on the part of testator, it is clear that the bequest is, in fact, one to the Bishop, as trustee. But even if this were otherwise, such a trust will not be held void because of failure by the testator to designate a trustee. In such a case the omission will be supplied by the court by appointment. Precisely this was held in Burke v. Burke, 259 Ill. 262, 102 N. E. 293, 296. There, as here, it was contended that the parish to which the bequest was made was an unincorporated association incapable of receiving as grantee or acting as trustee, and that consequently the gift could not be sustained as a charitable trust. Dismissing this contention, the court said: ‘Where a gift is made to a charitable use and no donee is named, or the donee named is incapable of taking the property, the gift will not fail, but a court of equity may appoint a trustee to carry out the charitable purposes.’
“This, we believe, is the rule in all but one or two States in which, by statute, a different rule is applicable. See Russell v. Allen, supra, and Scott, Trusts, Vol. 1, Sec. 97; Vol. 3, Sec. 397.2. for a full discussion of the subject;; see, also, Hoeffer v. Clogan, supra; Darcey v. O’Brien, supra; Burke v. Burke, supra; In re Kavanaugh’s Will, supra; In re Semenza’s Will, 159 Misc. 487, 288 N. Y. S. 556; Traver v. Weaver, 221 Ala. 663, 130 So. 209; McDole’s Estate, 215 Cal. 328, 10 P. 2d 75; Brinsmade v. Beach, 98 Conn. 322, 119 A. 233; Matter of Winburn’s Will, 139 Mis. 5, 247 N. Y. S. 584; Matter of Patterson’s Estate, 139 Misc. 872, 249 N. Y. S. 441.” (Emphasis ours.)

It was not until this confusion was resolved by the testimony of experts in Canon Law in literally hundreds of cases that the purpose and spiritual reasons underlying the saying of Mass became so well known to the courts that the distinctions between private and public trusts began to disappear. It is now well recognized, as a matter of judicial notice, that there is no difference between Mass said for the repose of the soul of one deceased and any other type of Mass. The Roman Catholic Church regards the Mass as a sacrifice to God. It is a reenactment of the supreme sacrifice made upon the cross. Its purpose remains the same. It is the dedication of a sacrifice for the soul of all mankind who will accept it in atonement for their sins. The purpose of Mass, regardless for whom said, is to give honor and glory to God. The participants thank Him for all the benefits He bestows upon the world. The Mass makes petition to God for those, blessings and graces of which men are in need, and it makes atonement for His offended justice.

When a Mass is said for the soul of a departed individual or group of individuals it also has a special fruit for their particular soul, when the deceased is responsible for the Mass being said, as where he has left a bequest for that, purpose. The merit and grace which inheres is that which attaches to the doing of a good deed. It is so firmly fixed as a matter of general knowledge, that it recognizes no testimony to support the proposition that whether or not the Mass be a special one for the soul of one deceased, it yet remains an act of worship which, according to the doctrine of the church, spiritually and primarily benefits all who participate in it and all who are willing to accept the sacrifice and the atonement offered by it. See In re Estate of Hamilton, 181 Cal. 758 (cited with approval in Dempsey v. Christ the King Church, supra).

According to the doctrine of the Catholic Church a mass most especially procures help and relief for the faithful departed, and is therefore the most effectual means of liberation from purgatory. How soon a soul may be released from purgatory depends upon the will of God. However, upon its liberation from Purgatory, a soul is incapable of further benefits from the saying of Mass, and it is therefore the practice of priests celebrating Mass to offer the Mass with a secondary intention so that the fruits of the Mass will be applied to other souls. This would appear to be an application of the religious cy pres doctrine.

This is further borne out by the Official Text of the Mass, in the “Commemoration of the Dead”;

“Be mindful also, O Lord, of thy servants and handmaids (Names) who are gone before us with the sign of faith, and rest in the sleep of peace. To these, O Lord, and to all that rest in Christ, we beseech thee grant a place of refreshment, light and peace. Through the same Christ our Lord. Amen.”

Catholic Encyclopedia, “Mass”, Vol. X, p. 19, (ii); “The Holy Sacrifice of the Mass”, by Rev. Dr. Nicholas Gihr; “Catechism of The Council of Trent for Parish Priests” issued by Order of Pope Pius V; “Roman Missal”, Official Text of the Mass.

In the ease at bar it must be conceded that the testator did not specifically name a beneficiary. This would appear to be the only distinction which could possibly arise between the Sedgewick case, supra, and the one now under consideration. This exclusion appears unimportant, in view of the uncontradicted testimony offered herein, and which discloses that St. Therese Church was the only church regularly attended by the decedent and his wife, which, together with the Canon Law, unquestionably made them members solely' of St. Therese Church, and this Court can correct the omission by ordering the fiduciary to pay the funds to St. Therese Church.

Such was the finding in the case of Obrecht v. Pujos, 206 Ky. 751, wherein the testator provided in his will that Three Hundred Dollars should. be expended for the celebration of Masses for the repose of his soul. It was contended that such a provision was void because,

“first, it is not a charitable use within the meaning of our statute; secondly, there is no trustee appointed to carry out the bequest; and thirdly, since no beneficiary is designated, and this is a private trust, it is invalid for the want of a beneficiary to enforce it.”

The objections were overruled and the validity of the bequest sustained on the ground that a charitable use was involved and the rule of private trusts was not applicable. The absence of a trustee was not material as the court could remedy that situation by appointing one.

The Court stated, on page 755:

“Lastly, the appellees’ insistence that this bequest must fail because no beneficiary is designated is also without merit. The idea that a gift on trust for benevolent purposes might be void because there was no cestui to enforce the trust originated in Lord Eldon’s holding in the case of Morice v. The Bishop of Durham, 10 Ves. 521. As stated by the writer in 11 Harvard Law Review 331, this decision of this eminent judge has had a lamentable effect and has placed a great tax on the ingenuity of judges and lawyers to prevent the extension of its principle. Gifts on trust for the purpose of erecting tombstones, for maintaining stables and kennels have been upheld; see Ford, et al v. Ford, Exr., 91 Ky. 572, 16 S. W. 451; and the principle on which these cases are supported is that the trustee or donee takes subject to a moral obligation to carry out the testator’s commands, and if he is willing to act honestly equity will not prevent him, but if he refuses to perform his duty, the heir or next of kin may interfere. As said in the O’Leary case: ‘Nor do we see any reason why the application of the fund to the designated purpose may not be enforced by the courts upon the application of the heir.’ .It cannot be doubted that the testator here intended that the Masses for his soul should be said in some Roman Catholic Church, and if the administrator or trustee appointed should fail to execute this wish, he can be called to account in the fashion indicated. The general class of the use being designated with reasonable certainty, the immediate object thereof may be selected by the trustee. Miller v. Tatum, supra. We cannot essentially distinguish this provision of the will from the like clauses upheld in the O’Leary case. See also Schouler, Petitioner, 134 Mass. 426; Moran v. Moran. 73 N. W. 617 (Iowa); 39 L. R. A. 204, and the note to Hadley v. Forsee, 14 L. R. A. (N. S.) 96. For these reasons, we concur in the finding of the lower court that this first clause of the will is valid.”

It is, therefore, the finding and judgment of this Court that under Item 15 of the will of Antonio DiFronzo, deceased, it was the intention of the testator that his residuary estate be paid to St. Therese Church; and the executor of said decedent’s will is ordered to pay to St. Therese Church such funds and property which may come into his hands under and by reason of Item 15 of said will.


author: By WISEMAN, J.:

text:
    SMITH, Plaintiff-Appellant, v. SMITH, Defendant-Appellee.
    Ohio Appeals, Second District, Montgomery County.
    No. 2061.
    Decided November 16, 1949.
    Gus W. Byttner, Dayton, for plaintiff-appellant.
    Jacobson & Durst, Dayton, for defendant-appellee.
   OPINION

By WISEMAN, J.:

This is an appeal on questions of law from the judgment of the Common Pleas Court, Montgomery County, Ohio, dismissing the plaintiff’s action for alimony.

There is no bill of exceptions presented to this Court. The matter is presented on separate findings of fact and conclusions of law. In brief, the trial court found that the plaintiff and the defendant were living together in the same home at the time the petition for alimony was filed and continued to live in the same home for a period of six months to a date ten days prior to the hearing. The court concluded as a matter of law that permanent alimony may not be decreed where the evidence shows that the husband and the wife are not living separate and apart.

The errors assigned are directed to the action of the court in dismissing the plaintiff’s petition for alimony on the facts stated. The sole question presented for determination is whether the court may decree permanent alimony to the wife under the provisions of §11997 GC, when the facts show that the husband and wife “continued to live together in the same home.” No reported case is found in Ohio deciding this precise question.

“Alimony” signifies an allowance for nourishment or sustenance of the wife which a husband may be compelled to pay to his wife when she is living apart from him, or has been divorced. Fickel, et al., v. Granger, 83 Oh St 101, 106, 93 N. E. 527; Lape v. Lape, 99 Oh St 143, 145, 124 N. E. 51; Durham v. Durham, 104 Oh St 7, 10, 135 N. E. 280; Fisher v. Fisher, 78 Oh Ap 125, 128, 64 N. E. (2d) 328. In Nelson on Divorce and Annulment, Second Edition, Vol. 3, Page 374, the author states the rule to be as follows:

“In the absence of a statute to the contrary, the spouses must separate both from bed and board, or must be living separate and apart, in order that the right of separate maintenance may arise and that a proceeding therefor may be maintainable. Such separation, it has been said, must exist in fact before the wife may have the aid of a court, for it is the constant purpose of the courts to compose differences and smooth out rough places in marital paths.”

In Keezer on Marriage and Divorce, Third Edition, Page 609, Section 565, the rule is stated as follows:

“Alimony cannot be decreed unless the parties are actually separated. If they are living together, there is no need of alimony. The reason is that if the wife is living with her husband she can if necessary pledge his credit for her support. Furthermore the continuing to live under the same roof raises a presumption that the offense complained of has been condoned.”

See Vol. 17, Am. Jur., page 405, Section 496 and page 461, Section 586; Vol. 14, O. Jur., page 459, Section 69.

Thus it has been held that alimony may not be decreed unless the court finds that the wife is living separate and apart from the husband. The difficulty arises in determining in a given case whether under all the facts there is a living separate and apart. The precise question for this Court to determine in the instant case is whether the fact that the husband and wife “continued to live together in the same home” constitutes cohabitation. It must be observed that the trial court did not specifically find that the husband and wife lived “separate and apart”; neither did it specifically find that they lived in a state of marital cohabitation. It has been held that “cohabitation will be inferred from the living together of husband and wife; and condonation will be inferred from cohabitation, where the contrary does not appear.” Burns v. Burns, 60 Ind. 259. But in the instant case we need not indulge the presumption for we And from the record that several months after the plaintiff instituted her action for alimony she filed a motion to dismiss the defendant’s cross petition on the ground “that plaintiff and defendant have cohabited together in the same home and in the same bed, during all of the time that said cross petition has been pending in this court.” In view of this admission on plaintiff’s part we conclude that the finding of the trial court that the parties “continued to live together in the same home” was tantamount to a finding that they continued to cohabit. Consequently, the record in this case shows that the wife was not living “separate and apart” from the husband at the time the action was instituted and for a number of months thereafter. Under these circumstances the wife was not entitled to maintain an action for alimony.

Judgment affirmed.

MILLER, PJ, and HORNBECK, J, concur.


text:
    OTIS et al. v. UNION TRUST CO. et al.
    Probate Court, Cuyahoa County.
    No. 184146.
    Decided Nov. 9, 1944.

      Julius Bloomberg, Eugene E. Wolf, Jos. G. Stashower, Cleveland, for Margaret Ranney Otis, Guardian.
    Friebolin & Byers, Cleveland, for Carl D. Friebolin, Guardian.
    Harold O. Ziegler, Cleveland, for Union Trust Co.
    Baker, Hostetler & Patterson, Cleveland, for Union Properties, Inc.
    James B. Dolphin, Cleveland, for Frankland Stafford and McRea Parker.
    McConnell, Blackmore, Cory & Burke, Cleveland, for Winifred Stafford Parker and John McRea Parker.
    Blakely, Ostrander & Blakely, Painesville, for Harry R. Collacott, guardian of Olive Maude Stafford Crum.
    Hugh S. Jenkins, Columbus, H. O. Ziegler, Cleveland, for Superintendent of Banks of Ohio.
   OPINION

By BREWER, J.

A petition to vacate and set aside the approval of the final account and surcharge the executors and trustees for losses sustained by the estate was filed by Margaret Ranney Otis, guardian, et al., against The Union Trust Company, its liquidator, and Frankland Fish Stafford and John McRea Parker.

Oliver M. Stafford died testate on August 12, 1929. The Union Trust Company of Cleveland and Frankland Fish Stafford and John McRea Parker were appointed executors of his last will and testament.

On June 15, 1933, the Superintendent of Banks took over The Union Trust Company for liquidation. On December 2nd, 1935, the Superintendent of Banks filed in the Probate Court an application for authority to file suit against the estate of Oliver M. Stafford, deceased. On December 26th, an action was commenced in the Court of Common Pleas of Cuyahoga County. On June 10, 1937, an offer of settlement by all parties to the action was submitted to the Court of Common Pleas, together with a proposed Journal Entry, which was approved by Judge Lausche. On September 12, 1937, the Superintendent of Banks filed a final account, which was approved and was recorded on October 27, 1937. On March 27, 1942, and on May 9, 1942, actions were filed in the Probate Court on behalf of the plaintiffs herein seeking to surcharge the executors for any loss sustained and asking for an order of this Court to set aside the settlement.

The plaintiffs contend that the defendant executors were guilty of a breach of duty in the retention of the stocks held in the estate including the six thousand shares of The Union Trust Company stock. It is argued:

First, that the retention by the executors of decedent’s stock for a longer period than one year from the date of their appointment was a violation of §§10684 and 10697 GC.

Second, that under the facts existing in this case, such retention amounted to gross negligence, and

Third, that so far as The Union Trust stock is concerned, such retention constitutes self-dealing in violation of the principles laid down in the Ella Stone case (Trusteeship of Stone), 138 Oh St 293, 34 N. E. 2d 755, 134 A. L. R. 1306.

These three contentions constitute the basis of plaintiffs’ case and they are considered separately in the above order.

The first contention is purely one of law. It asserts, as a matter of statute requirement that all stocks coming into the hands of the executor, or administrator, must be reduced to cash within one year of his appointment and qualification. With respect to this claim, it suffices to say that no such rule or practice has been followed in the administration of decedent’s estate by the Probate Courts in this State, nor do I find any language in any action of the Probate Code indicating that this was ever intended by the Legislature of Ohio. To hold that an executor is under an absolute duty to sell securities coming into his hands would nullify the right of beneficiaries desiring distribution in kind. It would make all executors and administrators guarantors of every share of stock held longer than one year. It would defeat the exercise of discretion on the part of decedent’s personal representative. In all of these respects it would jeopardize rather than protect the property subject to administration.

The second contention is principally one of fact. So far as any case was made by the plaintiffs upon this issue, it is circumstantial. (Mr. Byer’s Reply Brief, page 26) The six thousand shares of The Union Trust Company stock were retained by the executors. The other stocks owned by the decedent were transferred to the estate of the decedent’s widow shortly before the official closing of the bank in satisfaction of a loan to the defendant executors made by her to them during her lifetime for the payment of a debt to the Bank of Manhattan Trust Company.

In the light of hindsight it is easy to say that the executors of this estate should have sold all of the stock owned by the decedent as soon as they assumed their offices. On the other hand, the record shows that all of the stocks in question were purchased by the decedent as permanent investments; that in three of the companies, including The Union Trust Company, the decedent had been, for many years, the principal executive officer; that the primary beneficiaries of the decedent’s estate, namely, the decedent’s widow, his two children, and the guardian of his third child, desires, or at least acquiesced, that the stock be retained for distribution to the trustees under decedent’s will; that, none of the stocks involved could have been sold, except at prices substantially below the then current market, under unfavorable conditions and in competition with distressed sales; that throughout the period prior to the failure of The Union Trust Company substantially all its principal officers and directors were adding to their holdings of Union Trust stock, and executors honestly felt that the retention of the decedent’s portfolio was in the best interest of the estate and the beneficiaries thereof.

Under these circumstances the question naturally suggests itself, if the plaintiffs in the present action had made an application to the Probate Court for an order requiring executors to sell six thousand shares of The Union Trust Company stock in the midst of the World panic and contrary to the judgment of supposedly well informed opinion, would the Court have so ordered. If that question cannot clearly be answered in the affirmative, and it seems to me that it cannot, then how can this Court condemn these same executors by holding that they must now account for the consequences of the financial failure of The Union Trust Bank.

The general rule is expressed in Re Trusteeship of Adam J. Conover, deceased, Ohio Prob. Ct., 5 Ohio Supp. 330, at page 337:

“It is true that a general decline in market value of securities prevailed for several years previous to filing the last account, which decline in market values has brought about a tremendous shrinkage in the value of this estate. The trustee is not liable simply because this shrinkage has occurred. The trustee is • only liable for the loss to the trust fund when in the exercise of ordinary prudence it could or should have taken the necessary steps to prevent the loss.
“What did the trustee fail to do which is alleged to be a breach of trust? The answer is that it failed to sell on a rapidly declining market numerous securities for which no ready or active market could ■ be found. In failing to sell these securities the trustee simply failed to do what practically all trustees and fiduciaries and private individuals in general failed to do during the last several years. That this country and the whole civilized world was caught in an economic maelstrom of unprecedented dimensions which has either wrecked or seriously affected almost every line of business in the country, and in fact threatened the structure of government itself, is a fact so well known to all that little evidence on this point would suffice to convince the court that the situation was so unusual and the financial and business world was in such a state of confusion that no trustee as a matter of law, should be held responsible for a depreciation in the value of securities, simply because it pursued a ‘watchful waiting’ policy which was the course of action followed by the owners of stock in general throughout the country.
“This court is ready to announce that it will not hold any fiduciary responsible for a depreciated value of the trust estate due to general decline in market values of securities during the last several years, if the liability of the trustee is sought to be fixed on the sole ground that the trustee failed to sell securities on a declining market. However, if the fiduciary is in possession of facts and circumstances which would reflect unfavorably on the financial stability of any company which would unduly increase the hazard of retaining such securities, the fiduciary, in failing to dispose of such securities in face of facts which would lead a person of ordinary prudence in protecting and preserving his own estate, to sell, would be liable for any loss which is suffered by the estate by reason of the failure of the fiduciary to sell. Perry on Trusts, 7 Ed. §465.”

Entertaining these views, the third contention of plaintiffs must be considered by itself. There is no evidence, or certainly no substantial evidence of actual fraud on the part of The Union Trust Company, as one of the three executors. The sole question is whether a corporate executor should be held liable in the absence of actual fraud or negligence for losses resulting from the retention of its own stock. Here again, the imposition of any such rule must be reconciled with the statutory rights of beneficiaries to a distribution in kind.

I have no doubt that the rule against self-dealing applies to all fiduciaries, including trustees, but I have the gravest doubt of the soundness of the rule which would require a trust company executor to sell within a year all of its own stock which may have been purchased by its decedent.

It is not necessary in this case to decide that under no circumstances would the retention by an executor of its own stock constitute self-dealing. The question is rather, whether an executor should be held to be under an affirmative duty to sell under the principles laid down in the Ella Stone case, supra. In the Stone case the bank was not charged as executor, neither was the bank, as here, one of the beneficiaries. In the light of the testimony of the witness, Stafford, and in the light of the whole record, this is not a case where the rule in the Ella Stone case should be applied.

The foregoing questions all have a bearing upon the remaining questions involved in this litigation. To reach them plaintiffs ask this Court, long after Term, to set aside its order approving the first and final account of the executors, and to set aside certain other orders entered herein and in the Court of Common Pleas. Of necessity plaintiffs contend that all such orders were obtained by fraud on the part of the defendant executors and on the part of the Superintendent of Banks. In support of their contention of fraud, plaintiffs offered in evidence portions of the records of certain suits in which the Superintendent of Banks had been a party prior to the entries herein sought to be vacated. Prom these records it is argued that the Superintendent of Banks, and his counsel, must necessarily have known that the orders now sought to be vacated were improper and the most that can be said for this evidence is that it tends to support certain conclusions of law asserted by plaintiffs with which the defendants are not shown, either then, or now, to agree. These is no evidence in the record that in the procurement of the orders sought to be vacated the defendants misrepresented, or concealed, any material facts purposely, or otherwise. In this state of the records plaintiffs have failed to sustain their contention of fraud.

This Court, of course, must consider the effect of the McIntyre Act, §710~92a GC. Plaintiffs make no claim that the principles laid down in the Ella Stone case have any application to the individual executors. In any view there is no evidence against them of negligence or fraud. Their beneficial interest in the estate and their relationship to the other beneficiaries preclude even the possibility of their having been influenced in the retention of the securities involved by considerations inconsistent with their duties as executors. The evidence affirmatively shows that they were not so influenced. In this state of the record the individual executor defendants are clearly and completely dissolved from any claim or liability on their part for breach of duty as executor by reason of the retention of securities held in the Stafford estate.

If it should be considered that the situation of The Union Trust Company is not equally clear, we are at once confronted by the bar of the McIntyre Act. It is stipulated in the record that prior to the filing of the petition herein no claim was ever presented to the Superintendent of Banks on account of the transactions here complained of. To assume that it was the duty of the Superintendent of Banks to file claims against himself for act committed prior to the time when the Superintendent took possession of the bank defeats the very purpose of the Act. To assume that the individual executors fraudulently conspired to refrain from filing any such claim, or prevent any beneficiary from so doing, is not only unsupported by any evidence, but it is not claimed. The absence of any fraud on the part of any of the defendants makes it unnecessary to consider whether upon such grounds any exceptions exist to the requirement of the Act.

Sec. 710-92a GC provides as follows:

“Presentation and Proof of non book claims. At any time subsequent to the expiration of the date for filing claims as fixed by the superintendent of banks, pursuant to the .provisions of §710-90 GC, he may give notice by publication once a week for four consecutive weeks in a newspaper of general circulation in the county in which the principal office of such bank is located, requiring the presentation and proof of all general claims not filed and not appearing upon the books of the bank, at a place and time to be fixed in such notice, which time shall be not less than 60 days subsequent to the date of the last publication of such notice.
“All claims not filed in accordance with the provisions hereof shall be forever barred from participation in any of the assets of such bank, and such notice shall so state.”

The plaintiffs contend that the McIntyre Act does not apply to the present case. They advance as a reason that they had no knowledge of the claim at the time the McIntyre Act went into effect and, therefore, could not file a claim until the filing of the final account, which was after the effective date of the McIntyre Act.

Considerable emphasis to sustain this position is placed upon the Runcie case (In re Runcie’s Estate), Ohio Prob. Ct., 3 Ohio Supp. 42. The claim against the Runcie estate grew out of a double liability assessment on Union Trust Company stock. An appointment of an administrator was made April 15th, 1933. The Superintendent of Banks made his assessment on July 31, 1934. This court sustained the position of the plaintiff, holding that it was impossible for him to present his claim withip the four month period and that the claim, therefore, was not barred, and §10509-134 GC applied.

The Court, however, states, 3 Ohio Supp. on page 44: “After the Woodside Co. had sold the stock and received value for it, it had no knowledge, whatsoever, of any liability until the middle of 1937, at which time they received notice for the first time, according to the evidence, that by §710-75 GC, it was liable for the assessment. ⅛ * * The claim of the petitioner not having accrued until long after the death of the decedent, and not until long after the time prescribed by the statute for the presentation of claims to the administrator for allowance, the Court must conclude that this claim is not the kind of claim covered by the Statute, which at least by implication embraces only actual claims and not claims which have not yet accrued or which do not exist. It is, therefore, the finding of this Court that §10509-112 and §10509-134 GC are not applicable to the case at bar.”

In Zuroff v. Westchester Trust Company, 273 N. Y. 200, 7 N. E. 2d 100, 109 A. L. R. 1401, the Court considers claims against a corporation in liquidation. On page 204 of the opinion in 273 N. Y., at page 101 of 7 N. E. 2d the Court states: “No actions or proceedings may be taken in the enforcement of claims not filed within the time prescribed. (Matter of Societa Principessa Iolanda Margherita DiSavoia v. Broderick, supra [260 N. Y. 260, 183 N. E. 382]). The fact that the circumstances constituting the basis of a claim may not be discovered before the expiration of the time for filing claims does not authorize a filing and proof at a later date. (Matter of Bank of U. S. 269, N. Y. 578, 199 N. E. 679), nor, since section 72 does not constitute a statute of limitations, does infancy affect the requirement of compliance with the statute or extend the time specified in the superintendent's notice. (Schwarz v. Broderick, 269 N. Y. 610, 199 N. E. 696.) The same rule must necessarily apply to the late discovery of fraud. The purpose of these sections of the Banking Law is to provide a comprehensive and exclusive means for ascertaining claims and for a speedy distribution of assets of a moneyed corporation in liquidation. Matter of Egan, 258 N. Y. 334, at page 340, 179 N. E. 757.”

In the case of First National Bank of Colorado Springs v. Holt, Commissioner of Finance, 1942, Mo. App., 158 S. W. 2d 229, the Court held, on page 231: “This section has been uniformly construed to be a special statute of limitations, the effect of which is to bar any claim against a defunct bank in the hands of the commissioner of finance for liquidation unless such claim is filed with the commissioner within the time limited by the statute. Bowersock Mills & Power Co. v. Citizens’ Trust Co., Mo. App., 298 S. W. 1049; Harvey v. Peoples Bank, Mo. Supp. 136 S. W. 2d 273; Farm & Home Savings & Loan Ass’n of Mo. v. Howard, 224 Mo. App. 532, 30 S. W. 2d 631; Neathery v. Wells-Hines Trust Co., 229 Mo. App. 87, 75 S. W. 2d 83. The requirement for notice must of course be followed strictly. (Farm & Home Savings & Loan Ass’n of Mo. v. Howard, supra); and the sole exception to the application of the statute is that in the event the commissioner fails to give the character of notice which the statute requires and which the particular claimant is lawfully entitled to receive, then the period of limitation does not run against the. claim. Mann v. Bank of Greenfield, 323 Mo. 1000, 20 S. W. 2d 502.”

The sufficiency of a notice given by the liquidator is not raised in the instant case. It seems to be the universal rule that limitation statutes affect persons not sui juris as well as competent persons, unless there is a saving clause in the Act. In Breen, Adm’r v. Conn, 64 Oh Ap 325, on page 327, 28 N. E. 2d 684, on page 685, the Court held: “Sec. 10509-112 GC, is what is known as a non claim statute (Beach v. Mizner, supra [131 Oh St 481, 3 N. E. 2d 417]) that is, one which required an act to be done as a prerequisite to the accrual of a cause of action; and the general rule as to such statutes is that all persons, whether under disability or not, are bound thereby unless excepted from their operation by a saving clause. Such rule was announced in Favorite v. Booher’s, Adm’r, 17 Oh St 548, and at that time §11229 GC, was in force (2 S & C 949, Section 19).”

The plaintiffs contend that the liquidator had knowledge of the claim, had custody of the records and books of the estate, and. therefore, presentation was unnecessary.

A similar contention was made in the case of Stanlev v. Hart, 29 O. O. 35, affirmed by the Court of Appeals and by a divided Supreme Court, 142 Oh St 528, 53 N. E. 2d 197. The decision of Judge McNamee is as follows:

“It is the contention of the plaintiffs that the claims of the certificate holders appear upon the books of the bank and are not within the purview of the McIntyre Act. This claim must be rejected until October, 1933, the certificate holders appeared upon the books of the bank as beneficial owners of the property, legal title to which was held by the bank. Thereafter the books of the successor trustee reflected the certificate holders’ beneficial ownership of the property and the legal title in the successor trustee. At no time was there any entry or record upon the books of the bank indicating that the certificate holders asserted a claim to the recovery of money.
“A further proposition urged by plaintiffs is that the provisions of the McIntyre Act are inapplicable ‘because it is the duty of the superintendent to recover the property and treat the certificate holders as creditors.’ This claim is untenable. The McIntyre Act is definite and unambiguous in its terms. No member of the class of claimants therein referred to is exempt from compliance with its mandatory requirements. It recognizes no exceptions.”

The superintendent of banks has no power and owes no duty to consider any claim filed after the effective date of the McIntyre Act. Fulton v. General Motors, 130 Oh St 494, 200 N. E. 636.

The McIntyre Act is a special statute of limitations governing the presentation of claims against an insolvent bank in the hands of the liquidator. So far as this Court’s attention has been directed, the provisions of this Act make no exceptions whatsoever which would prevail in favor of the plaintiffs in this case for failure to file their claim within the time prescribed by §710-92a GC.

Other questions have been raised by the plaintiffs, but such other questions are either disposed of by what has already been said, or their disposition is rendered unnecessary thereby.

A journal entry will be made -accordingly.

      . No written opinion — Decree for defendants as in Common Pleas Court.


author: By BUCKLEY, J.

text:
    DORNAN, Admr., Plaintiff-Appellant, v. YAVORSKY et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3251.
    William E. Lewis, Joseph C. Miller, Youngstown, for plaintiff-appellant.
    Henry C. Church, D. Pauline Church, Youngstown, for defendants-appellees.
   OPINION

By BUCKLEY, J.

This action is presented to the court of appeals on questions', of law. From the pleadings and the evidence as recited in the bill of exceptions the plaintiff-appellant sought to recover under a promissory note executed by the defendants-appellees on January 18, 1930, in the.amount of $4740.00 with interest. The note was due and payable five years after date.

In the answers filed the defendants admit the execution of the note and allege two defenses: First, that it was agreed between plaintiff and the defendant that the note would be satisfied by care and services rendered to the deceased plaintiff at the time of her death; and second, that in the event the first defense was not proved that substantial payments, had been made upon the obligation in cash and in agreed, services.

In the trial of the case, the jury found for the defendants and from the examination of the verdict evidently found: that the first defense, the agreement of satisfaction for services rendered to the plaintiff to the time of her death, was the true fact.

The plaintiff-administrator-appellant files his appeal on questions of law on the following assignments of error, to-wit:—

“1. That the trial court erred in overruling this plaintiff-appellant’s motion for a new trial.
“2. That the verdict of the jury and the judgment of the trial court were manifestly against the weight of the evidence.
“3. That the verdict of the jury and the judgment of the trial court is contrary to law.
“4. That the trial court erred in the admission of evidence over the objections and exceptions of this plaintiff-appellant.
“5. For other errors of law apparent on the face of the record.”

As developed in the brief of plaintiff-appellant, the assignments of error may be substantially reduced to the following: That the verdict of the jury and the judgment of the trial court is against the weight of the evidence and contrary to law; and second, that the trial court erred in the admission. of evidence over the objections and exceptions of this plaintiff-appellant. The principal error claimed in the brief of the plaintiff-appellant is that the trial court erred in the admission of evidence over the objections and exceptions of the plaintiff-appellant.

In consideration of this assignment of error, the plaintiff - appellant stresses the claimed error that the testimony of Helen Yavorsky, Mary Farcus and Sophie Fabish, daughters of the defendant Adolphia Yavorsky and granddaughters of deceased Catherine Radesky, should not have been admitted, and the admission of the same over the objections and exceptions of the plaintiff-appellant constituted error on the part of the trial court.

This court does not find the exception well taken. It is the opinion of the court of appeals that the testimony of the named granddaughters should have been admitted to evidence, and that their testimony was a matter to be considered by the jury in weighing it and in giving to it the proper consideration.

This court cites with approval the law as set forth in the defendants-appellees’ brief, to-wit: Stephens v. Seaboard National Bank, Exr., decided by the cofirt of appeals of Cuyahoga county in 1925 and set forth in 4 Abs 190. The syllabus reads:—

“Declarations and admissions against interest made to others than a party to the action by a person since deceased, should receive consideration of court and be admitted in evidence in proving an agreement.”

We also approve the statement of law set forth in 5 Abs 480, Weber v. Longenbach, decided by the Sixth District Court of Appeals as follows:—

“Exclusion of testimony as to statement made by deceased releasing defendant from liability, such statement being an admission against interest, is prejudicial error.”

A consideration of these two cases shows that the courts of Ohio have passed upon this question both in an affirmative and a negative manner. In the Stephens case the Cuyahoga County Court of Appeals has held that the admission of such evidence is proper, and the Sixth District Court of Appeals-has held that the exclusion of such evidence is prejudicial, error. It is the opinion of this court that the law is decided, on this question, and that the admission of the testimony of the granddaughters of the deceased Catherine Radesky was-proper for the consideration of the jury, and that the weight, to be given to such testimony, under proper instruction, was not prejudicial error in this case.

On the question of the assignment of error as to the weight, of the evidence and the law we feel that the trial court did not err in the admission of testimony or in the exclusion thereof; that all questions were properly before the jury-under good and sufficient instructions of the trial judge; and. that the question of the weight of the evidence was properly-considered by the jury; and that the decision of the same is-not contrary to the weight of the evidence nor contrary to law.

For these reasons this court affirms the judgment of the trial court; and finds that the trial court did not err in overruling the motion of the plaintiff-appellant for the cited reasons that the verdict of the jury and the judgment of the court were contrary to the weight of the evidence or contrary to law.

PHILLIPS, PJ, concurs in judgment.

NICHOLS, 3, concurs.


author: By MILLER, PJ.

text:
    SPARKS, Plaintiff-Appellant, v. SIMS, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4279.
    Decided October 27, 1949.
    Draper, Lombardo & Morgan, Russ Bothwell, Columbus, for plaintiff-appellant.
    Benoy & Sebastian, Columbus, for defendant-appellee.
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court rendered upon a special verdict by the jury. The action was one for damages arising out of a collision between an automobile and a pedestrian. The answer admits the occurrence of the accident, denies generally all allegations of negligence and further sets up the defense of contributory negligence. An examination of the record discloses that the issue of contributory negligence was definitely in the case; that the conduct of the defendant was such that would warrant the jury in finding that the defendant failed to exercise ordinary care.

The plaintiff requested a special verdict, submitting two forms: one was in the question and answer form, which was given; the other was refused, the same being as follows:

“Write out your own narrative form as to the happening of this accident and what the parties did or failed to do to cause the accident.
Write down the amount of money that would fully compensate plaintiff for his injuries including loss of wages and medical expenses and pain and suffering. $-.”

The refusal of the court to submit this special verdict to the jury is one of the alleged errors.

The following question and answer form was requested by the plaintiff and submitted to the jury:

“Was the plaintiff, Mr. Sparks, standing in Simpson Lane at the time he was struck? -
Did defendant continue to back onto Simpson Lane while his view of where plaintiff, Mr. Sparks, was standing was obscured? -
Did defendant give a clearly audible signal at the time, or immediately before he backed his car into Simpson Lane and against plaintiff? -
Did Mr. Sparks sustain injury to his knee when struck by defendant’s automobile? -
What amount of money did Mr. Sparks incur for doctor bills and treatment for said injuries? -
How much time did Mr. Sparks lose from his work by reason of said injuries to date? -
Did Mr. Sparks exercise ordinary care for his own safety?
By reason of said injuries was he disabled from doing his manual labor required by him on his job? -
Do you find that Mr. Sparks will suffer any pain in the future? -
Did Mr. Sparks suffer any pain shortly after the accident? —
Bearing in mind, the elements of damage which you find above, what sum of money would fully and adequately compensate him therefor? -
Signed by nine or more of your number.”

The defendant requested the following form of verdict, which was submitted and which the plaintiff claims was erroneous:

“We, the undersigned, nine or more of the jury in the above entitled cause do find as follows:
On June 3, 1947, at approximately 3:35 P. M., an automobile of the defendant, Charles Sims, was parked on a parking lot immediately north of Simpson Lane. The automobile was headed in an easterly direction against a barricade. At the said time, the defendant, Charles Sims, entered the automobile, started the engine, sounded the horn, looked to his rear, slowly backed the automobile from the parking space in a southwesterly direction, and stopped while still on said parking lot. The defendant remained so stopped until automobiles proceeding easterly on Simpson Lane had passed. The defendant then looked in his rear vision mirror and saw no one to his rear. Defendant then looked to his rear from his left hand window, saw no one, and while so looking operated the automobile slowly in a southwesterly direction into the north half of Simpson Lane. While so proceeding, the rear of the automobile came in contact with the outside of the left knee of the plaintiff. The defendant immediately stopped the automobile.
The plaintiff, L. J. Sparks, had been walking in an easterly direction on the north half of Simpson Lane, came to a stop on the north half thereof, and stood facing in a southerly direction. While plaintiff was so standing, the automobile driven by the defendant, came in contact with the plaintiff’s left knee. The plaintiff failed to exercise ordinary care for his own safety. The conduct of the plaintiff constituted negligence which proximately caused or contributed to the accident, and any injuries the plaintiff received as a result thereof.
If, upon these facts, the plaintiff is entitled to recover, we do find that the plaintiff has been damaged in the sum of $-.”

The jury was instructed by the court that it need not use any of the special forms submitted, but that it might write its own, if it so desired. That is what it did, returning the following special verdict in its own words, as follows:

“We, the undersigned, believe the plaintiff failed to exercise ordinary care for his own safety. The conduct of the plaintiff constituted negligence which proximately caused or contributed to the accident and any injuries the plaintiff received as a result thereof were due to his own negligence.”

•The appellant is objecting to the special verdict submitted by the defendant and also to the verdict returned, for the reason that they contained conclusions not stating whether factual or legal. The office of a special verdict is to determine such facts embraced within the issues as give rise to legal conclusions. Sec. 11420-14 GC defines it as:

“A special verdict is one by which the jury finds facts only as established by the evidence; and it must so present such facts, but not the evidence to prove them, that nothing remains for the court but to draw from the facts found, conclusions of law.”

The special verdict submitted by the defendant called only for facts which were in issue and the same was properly submitted. The failure to submit plaintiff’s requested special verdict seeking a return in the narrative form could not be the basis for error proceedings, as that is what the jury did. It may be in the narrative form. Dowd-Feder Co. v. Schreyer, 124 Oh St 504. No particular form of request is necessary in order to require a trial court to direct the jury to return a special verdict. It is sufficient for counsel to demand that a special verdict shall be rendered.

It is stated in 39 O. Jur. at page 1134:

“* * *; in fact, the narrative form of verdict may be usefully employed, perhaps, if a single issue is before the jury, but the better form or method, and the better practice, especially when complex issues are present, is for each material issue to be covered singly and independently by a question admitting of an answer in the affirmative or negative, and an answer thereto, each question calling for a finding of a single ultimate fact.”

The jury by their return found two ultimate questions of fact, namely, that the plaintiff failed to exercise ordinary care for his own safety, and that his conduct proximately caused and contributed to the accident. If the facts relating to the plaintiff’s conduct were in dispute it probably would have been necessary for the jury to have gone further and found the specific facts which support its conclusions. But this was not necessary, as the conduct of the plaintiff was not in dispute. The plaintiff himself testified as to his position in the street, the length of time he stood there talking with another person, and the direction in which he was looking. Neither the defendant nor any of his witnesses observed the plaintiff prior to the accident; so they could not refute this testimony. Material facts, not denied, must be found to be true. The office of a special verdict is to determine facts in issue and not admitted facts. We are of the opinion that the special verdict is sufficient to sustain the judgment for the defendant. The question of the exercise of ordinary care and proximate cause are questions peculiarly within the exclusive province of the jury. The jury’s statement that “the conduct of the plaintiff constituted negligence” may be said to be a conclusion of law. However, these words can be deleted from the verdict without removing any of its potency. The jury’s finding that the plaintiff failed to exercise ordinary care for his own safety necessarily requires the court to find as a matter of law that he was negligent. It is not reversible error for the court to disregard legal conclusions and to enter the verdict justified by the finding of fact. Noseda v. Delmul, 123 Oh St 647.

We are of the opinion that the special verdict fulfills the requirements of §11420-14 GC, and that no prejudicial error is to be found in the record.

The judgment is affirmed.

HORNBECK and WISEMAN, JJ, concur.