author: By WATTERS, J.

text:
    STATE, Plaintiff, v. ARNOLD (and 7 others), Defendants.
    Common Pleas Court, Summit County.
    Nos. 26254 to 26261, inclusive.
    Decided October 8, 1954.

      Alva Russell, Pros. Atty., Jackson Morris, Asst. Pros. Atty., Akron, for plaintiff.
    Jack B. Dworken, Cleveland, Thelma Furry, Akron, for defendants.
   OPINION

By WATTERS, J.

The Un-American Activities Commission of Ohio under present (§§103.31 to 103.88 R. C.) held a regular session in Akron, Ohio, on October 6 and 7, 1953. The eight defendants were subpoenaed to attend, did attend, and were sworn, but refused to answer the questions contained in the indictments or charges against them individually. There was a quorum of the Commission present each day. Because of their refusal to answer, the Commission did authorize this prosecution for contempt. It is stipulated that the allegations of fact in the indictments or charges of contempt are true. So really only questions of law are presented. The matters were presented to the Summit County Grand Jury where indictments or charges of contempt were made against each defendant for failing to answer the questions presented to each defendant as contained in the various (10) counts in each respective indictment or charge.

Each of the indictments or charges had various counts where the question asked had nothing to do with Communist Party membership or activity and could have been answered without any real fear of incriminating the witness.

But the witness in each instance, knowing the purpose of all questions was to inquire concerning his or her connections and/or activities in or with the Communist Party, refused to answer any of the questions listed and obviously upon the advice of his or her counsel there present.

But the respective charges show that each defendant refused to answer questions about his or her membership in the party and his or her taking part in its activities, and his or her association with known Communists.

The defendants all agreed to a joint trial. Each defendant through counsel agreed with the court that the alleged charges were not criminal offenses but civil, but each demanded a jury trial. The court ruled on that matter fully as shown by the record, but will again set forth its reasoning herein:

Old §76-31 GC, §103.34 R. C., provides the Powers and Duties of the Un-American Activities Commission.

Old §76-32 GC, §103.35 R. C., Powers of Chairman as to Witnesses, provides in part—

“—or on the refusal of any person—to testify to any matters regarding which he may be lawfully interrogated or to comply with §2705.02 R. C., the chairman may be authorized by a majority of the members sitting at the time the alleged offense is committed, to cause a proceeding for contempt to be filed and prosecuted in the Court of Common Pleas of any county under §§2705.03 to 2705.09 inclusive, R. C.”

Now, §2705.02 R. C. referred to in §103.35 R. C., provides as follows in part:

“A person guilty of any of the following acts may be punished as for a contempt—.”

Part (c)—“A refusal to answer as a witness when lawfully required.”

Old §12141 GC, §2705.06 R. C., headed “Trial by the Court” provides upon the day of trial the court shall investigate the charge, etc.

3 C. C. 268—2 C. D. 149, Amon v. Johnson, holds no jury trial is provided.

Sec. 2705.07 R. C. provides “The court shall then determine whether the accused is guilty of the contempt charged.”

The punishment provided is a maximum of ten days in jail and $500.00 fine.

In this court’s opinion, the legislature has squarely placed the alleged contempt or contempts under §§2705.03 to 2705.09 inclusive, R. C., which are the ordinary quasi criminal statutes employed in civil cases like alleged violation of injunctions and orders in civil cases, such as in divorce, labor picketing disputes and like matters in which a jury is never allowed nor contemplated or permitted.

Ordinarily the charge is filed in writing before the Clerk by affidavit or otherwise notifying the person charged of the specific charges involved or claimed against him.

Judge Emmons said in his ruling in these cases:

“The fact that 15 people of the Grand Jury heard testimony and returned an indictment makes that charge in writing an instrument of the greatest solemnity and formality that our form of government offers. Whether it is called an indictment or charge makes no difference. It is in writing and found a true bill by the Grand Jury and meets the requirements of §2705.03 R. C.”

Judge Webber in Canton, Stark County, where in similar cases indictments were returned, held in ruling on a motion to quash the indictment, that the indictment answered the necessity of a charge being filed as a civil matter.

Later the same court on demurrer to the indictment ruled that the matter was not a criminal offense but a civil matter and that a civil charge should be filed with the Clerk and the trial proceed without a jury.

In this court’s opinion the charges filed by way of indictment would have no greater effect than an affidavit, and charge a misdemeanor and fully answer the requirements of §2705.03 R. C. etc., and no jury trial is allowable.

In the court’s opinion, where the legislature in §103.35 R. C. quoted in part above provided as underscored by this court, it meant that a majority of the members sitting at the hearing may if they see fit authorize the chairman to cause a proceeding for contempt to be filed, and if they do, the proceeding is to be filed under §§2705.03 to 2705.09 inclusive, R. C.

In other words, under the so-called civil or quasi criminal statutes. No other procedure is set forth or provided nor is the chairman given any discretion.

For the reasons above stated, the court ruled the defendants not entitled to a jury trial and that the indictments or charges filed were a proper way in which to bring the matter before the court.

See also, 87 Oh Ap 371, Fawick v. Electric Workers; 148 Oh St 73, Castings Company v. Steel Workers; 56 Abs 419, Fawick v. Electric Workers. (Judge Doyle, 8th Court of Appeals.)

The constitutional question: The main question raised by the defendants and each of them is whether or not each of the defendants could claim privilege in refusing to answer the questions put to each on the grounds that the answer or answers would incriminate him or tend to do so under the Fifth Amendment to the United States Constitution, and under Article 1, Section 10, of the Constitution of Ohio.

The United States Constitution provides in part (5th Amendment) ,—

“—nor shall any person—be compelled in any criminal case to be a witness against himself.”

The Ohio Constitution (Article I Section 10) provides:

“No person shall be compelled in any criminal case to be a witness against himself.”

However, it has been held since the early case of Baron v. Baltimore, 7 Peters 243, that the 5th Amendment is no limitation on any state or state agency.

See also Palko v. Connecticut, 302 U. S. 319.

The first ten amendments to the United States Constitution (Bill of Rights), including the 5th Amendment, were enacted for the purpose of placing restrictions and limitations upon the Federal Government and its agencies, and are not limitation upon the state governments and hence it is not available to these defendants.

The question then is whether or not the defendants were justified under the Ohio Constitutional provision against self-incrimination in refusing to answer the questions or any of the questions propounded.

It will be remembered that the United States Smith' Act against subversive activities was in force at the time of this hearing, and Ohio passed its anti-subversive activities acts August 7, 1953, to-wit §§2921.21 to 2921.27 R. C., effective November 7, 1953.

Before the Smith Act was passed by Congress, in proceedings before Congress and other Federal agencies a witness could not successfully refuse to answer questions concerning his Communistic membership or activities or like questions.

Since the passage of the United States Smith Act against subversive activities, witnesses before Congressional Committees and other Federal agencies can successfully refuse to answer questions regarding their Communistic membership and activities under the Fifth Amendment because the Smith Act made subversive acts a crime.

In substance the Smith Act, among other things, made it a Federal offense -to knowingly advocate the desirability of the overthrow of this government by force or violence, or to be a member of an organization which advocates or teaches, etc., this principle.

This rule was laid down since the Smith Act in:—Blau v. United States 340 U. S. 159 (1950).

The court held that Mrs. Blau did not have to answer questions put to her about her communistic activities, in view of the Smith Act, even though her answers would not support a conviction of her, standing alone, but would have furnished one link in the chain of evidence which might lead to her conviction under the said Smith Act.

It is because of said decision and the Smith Act that witnesses before the Un-American Activities Commission of Congress and before other Federal agencies have been able to escape contempt conviction for refusing to answer questions concerning Communistic membership and activities of the witness.

And it was directly because of this situation that Congress under the urging and recommendation of Attorney General Brownell just in the past few weeks passed an act granting-immunity from prosecution, under the Smith and other U. S. laws, to witnesses who otherwise could assert the Fifth Amendment and refuse to answer.

The situation as it now stands is this: The witness can be granted immunity from prosecution, and if he still refuses to answer can be successfully punished for contempt of the inquiring body.

Some interesting cases before the Smith Act are:

Mason v. United States, 244 U. S. 362; Barsky v. United States, 167 Fed. 2nd 241; Lawson v. United States, 176 Fed. 2nd 49; State v. James, 221 Pacific 2nd 482; Fawick Co. v. Electrical Workers, 56 Abs 419.

So when the defendants were questioned the Smith Act was in full force and effect, but the present Ohio Statutes against subversion passed August 7, 1953 in Ohio (§§2921.21 to 2921.27 R. C.) were not in force.

So the question presents itself further as follows: Had the present defendants answered or admitted that they were members of the Communist party or had participated in its activities would they not be giving evidence as a part of a chain which might lead to their conviction under the U. S. Smith Act?

And even though the answer to the above question is “yes,” could they refuse to answer the questions put to them because the answers could incriminate them under the U. S. Smith Act.

Before discussing the answer to this question, two things must be noted:

First: When these witnesses were questioned there was no law in effect in Ohio resembling the Smith Act against subversive activities and no law against belonging to the Communist Party.

Second: Even had there been any remote danger of an Ohio prosecution our immunity statute protecting witnesses who appear before the Ohio Legislature or a committee or subcommittee thereof would have afforded the witness automatically full and complete protection from prosecution in Ohio and the authorities hold the witness need not request the immunity. This is old §60 GC, now §101.44 R. C., and in force over twenty years. It is as follows:

“Except a person who in writing requests permission to appear before a Committee or sub-committee of the General Assembly, or of either House thereof, or who in writing, waives the rights, privileges and immunities granted by this section the testimony of a witness examined before a Committee or sub-Committee, shall not be used as evidence in a criminal proceeding against such witness nor shall the person be prosecuted or subjected to a penalty or a forfeiture on account of a transaction, matter or thing concerning which he testifies or produces evidence. This section does not exempt a witness from the penalties for perjury.” (Emphasis by this court.)

A leading case which early laid down the rule that an immunity statute deprives a witness of his right to refuse to answer an incriminating question, even though he might be subject to prosecution in some other jurisdiction, is:

Brown v. Walker, 161 U. S. 591. The questions asked were in a Federal investigation. A Federal statute gave him Federal immunity from prosecution. It was argued that Brown might be subject to a state court prosecution where the Federal immunity statute would not protect him. The court said this possibility would not avail him and he must answer.

In Jack v. Kansas, 199 U. S. 372, the hearing was a Kansas State investigation of violations of the State statute against price fixing of coal. Under the Kansas statute Jack was immune from prosecution but not under the Federal statute. The defendant Jack refused to answer and was convicted of contempt. The Supreme Court affirmed his conviction.

The court also held that a state cannot by statute grant immunity to a witness from prosecution by the United States for violation of a Federal statute.

In other words, Ohio could not under its immunity statute set forth above grant a witness immunity from prosecution under the Smith Act.

In Hale v. Henkel, 201 U. S. 43, held “—A witness cannot refuse to testify before a Federal Grand July in face of a Federal statute granting immunity from prosecution as to matters sworn to, because the immunity does not extend to prosecutions in a state court. In granting immunity, the only danger to be guarded against is one within the same jurisdiction and under the same sovereignty.”

To the same effect see United States v. Murdock, 284 U. S. 141, paragraph (3) of syllabus.

In Feldman v. United States, 322 U. S. 487 (1944), Feldman was tried in Federal Court for fraudulent use of the mails. The government offered his incriminating testimony given before New York State court in which state he was by statute immune from prosecution.

The court held his state court testimony admissible and not forbidden by the Fifth Amendment.

A different view was taken by the Michigan Supreme Court in People v. Den Uyl, 318 Michigan 645 or 29 N. W. 2nd 284.

There one Hemans testified before a Michigan Grand Jury and under state immunity from prosecution as to bribery, etc. He then left the state. He was indicted by a Federal Grand Jury for the offense of crossing state lines to avoid testifying in the trial against those he testified against in the state grand jury.

He was brought back on the Federal charge and refused to testify in the preliminary hearing against those charged on the ground his testimony would incriminate him under his Federal indictment.

The court ruled he was entitled to refuse to testify.

The court did say, however, “We are aware that holdings at variance with the above can be found in other jurisdictions, including holdings in the Federal Court.” .

It must be borne in bind, though, that the witness, Hemans, was at the time under indictment as stated above for the federal charge, and by reason of that was returned to Michigan against his will.

I believe the decision was grounded on the emphasis above.

In re Watson 293 Michigan 263 cited in the Den Uyl case, the opposite result was reached and the court cited this from Wigmore on Evidence, Section 2258.

“By the weight of authority, the right to claim the privilege against self-incrimination merely because of possible subjection to the criminal laws of a foreign jurisdiction is denied.”

But the rule in Michrigan as stated in the Watson case, the Cohen case, 295 N. W. 481, Schnitzler 295 N. W. 478. the Ward case, 295 N. W. 483, is probably as follows:

“Whenever the danger of prosecution for a federal offense is substantial and imminent as a result of disclosures to be made under a grant of immunity by the state, such immunity is insufficient to overcome the privilege against self-incrimination.”

However, in the Ward case, 295 N. W. 483 (Michigan), at page 485 sets forth the federal rule as set forth in United States v. Murdock (284 U. S. 141), supra to the effect that the privilege against self-incrimination does not extend to protect the witness as to matters that may tend to incriminate him under the laws of another jurisdiction.

The court then said, page 485, that “for the purpose of this case it is unnecessary to consider whether we should extend the implication 'of the language in the Watson case to conform to the Federal rule.”

The court also said in the Ward case, “We put aside as remote and insubstantial the supposed peril of prosecution in the Federal court.”

So Michigan apparently will follow the Federal rule under such facts and their majority rule where the peril of prosecution in the Federal or other jurisdiction is substantial as said in the Schnitzler case, 295 N. W. 478.

But the witness cannot hide behind a fanciful or possible danger of prosecution in the other jurisdiction. The danger of prosecution must be reasonable.

None of the Michigan cases involved questions concerning subversive activities, but with the exception of the Watson case all grew out of the one man grand jury investigation of Judge Ferguson into gambling protection and racketeering mostly in Detroit.

In the case of U. S. v. De Carlo, 102 Fed. Supp. 597, Judge McNamee, 1952 N. Ohio District Court, upheld the right of a witness to refuse to answer incriminating questions concerning criminal violations under Ohio laws put to him by the Kefauver Committee, a Federal investigating agency.

The reason was the state could not force him to testify as to incriminations of state laws where no immunity is given, so the Federal agency could not. And it being a Federal agency investigation, the Fifth Amendment would prevail and could be invoked by the defendant witness as it is a restraint and limitation against the Federal government (Barrou v. Baltimore), etc., and its agencies.

CONCLUSION

What the Supreme Court of Ohio will say on this constitutional question upon which it has the final interpretation is not known nor do we have any appeals court decision as yet.

The common pleas courts, though differing on the correct procedure, have all ruled that the witness must answer.

It is the opinion of this court that it should follow the majority state rule which is also known as the federal rule to the effect that where the witness is granted state immunity, automatically, as in Ohio, where the proceedings are state conducted, the fact that the answer may possibly, or even reasonably, result in federal or other jurisdictional prosecution, will not justify the witness in refusing to answer. He must answer the questions.

Sec. 2921.21 R. C., etc., which in effect is the Ohio “Smith” Act making subversive acts, etc., a felony was passed August 7, 1953, and before the Un-American Activities Commission hearing in Akron, October 6th and 7th, 1953, and became effective November 7, 1953.

But even though that act had been effective when the hearing was had here, the Ohio immunity statute concerning testimony before the legislature and its committees, now §101.44 R. C. was in force and for many years before.

This, as stated before, automatically granted the witness immunity and the defendant witnesses were compelled to answer.

Counsel for the defendants suggest that the Un-American Activities Commission had practically passed out of existence in October because the Ohio Anti-Subversive act had been passed in August but this court has no control over that..

Personally I do not believe the various defendants would have been prosecuted federally, although it would not be unreasonable for them to assume that they probably would be.

The court finds the defendant witnesses and each of them were in contempt for refusal to answer each and every question put to each defendant respectively.

So the court finds that each and every question put to each and every defendant respectively, most of which questions had for its ultimate goal the ascertainment of whether or not' said witness was a member of the Communist party and his or her activities in said connection. However, many of the questions obviously had no direct bearing on the subject matter of the inquiry, and as said before, no truthful answer to those could be incriminating.

Judge Doyle, of our 9th Court of Appeals, sitting by designation as a member of the 8th District Court of Appeals in Cuyahoga County, wrote the opinion in Fawick Airflex Company, Incorporated, v. Electrical Workers, etc., 56 Abs 419, a contempt case against one Joseph Kres, a union member involved in strike picketing, ruled as follows:

Syllabus, par. (7)

“* * * A witness who has refused to answer three questions relating to his membership in the Communist Party is guilty of but one act of contempt.” (Emphasis by this court.)

Accordingly, the court applying said rule to the instant defendants, finds each defendant guilty of one act of contempt for refusing to answer the various questions put to each defendant respectively.


source: Caselaw Access Project

author: By SKEEL, J: By KOVACHY, J:

license: Public Domain

text:
    CONDON, Plaintiff-Appellee, v. ZAVESKY, Jr., Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22781.
    Decided May 18, 1953.
    Laronge & Curtis, Cleveland, for plaintiff-appellee.
    Davis & Young, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, J:

The undisputed evidence, as shown by the record in this case, reveals that the intersection of West 9th and Superior Avenue in the City of Cleveland (which is immediately east of the east end of the High Level Bridge) is controlled by signal lights. These lights are set so that after east and west bound traffic has been stopped and traffic directed to proceed north and south across the intersection on West 9th Street, said signal then changes so that the east-bound traffic may proceed for an interval of six or eight seconds before the west-bound traffic is permitted to move forward, said interval being provided to permit east-bound traffic to make a left-hand turn north into West 9th Street before being blocked by west-bound traffic.

The undisputed evidence in this case shows that the defendant had been proceeding east over the high level bridge and was the second car in line in the northerly east-bound lane stopping for the red light at the West 9th Street intersection; that thereafter, the green light turned for east-bound traffic to proceed. The car ahead of the defendant proceeded through the intersection either forward into Superior Avenue or left into West 9th Street (the evidence being in dispute on this point), and the defendant, hesitating for a moment before proceeding into the intersection to make a left-hand turn because he did not discover until then that the westbound traffic was being held and then proceeded to make a left-hand turn into West 9th Street and while thus turning the signal light changed permitting west-bound traffic to proceed. Plaintiff started forward from a standing position when the signal changed permitting west-bound traffic to proceed and ran into the side of defendant’s car then at an angle in the intersection, making said left hand turn.

Prom the foregoing facts it is the view of a majority of this court that the defendant, having proceeded into the intersection as directed by the traffic light, and making a left-hand turn under the protection of the delayed signal light for west-bound traffic, was lawfully in the intersection and when the signal thereafter changed for west-bound traffic to proceed, it was the duty of plaintiff to exercise care with respect to the traffic then lawfully in the intersection making a left-hand turn.

The judgment of the trial court dismissing the defendant’s cross-petition and finding for the plaintiff is therefore reversed as contrary to law for failure to accord defendant his preferential right under the undisputed facts and the cause is remanded for further proceedings. Exceptions noted. Order see journal.

HURD, PJ, Concurs.

KOVACHY, J, dissents.

DISSENTING OPINION

By KOVACHY, J:

I do not agree with the majority.

The evidence in this case is clear and undisputed. The plaintiff was operating his automobile west-bound on West Superior Avenue and stopped in compliance with a red light ■ at West 9th Street. The defendant was operating his automobile east-bound over the high level bridge and likewise stopped his vehicle in compliance with the red light at West 9th Street. The defendant was the second automobile in line and, when the green light came on for him, proceeded easterly into the extremely wide intersection with the intention of making a left hand turn north into West 9th Street. The green light for west-bound traffic was delayed six or eight seconds and when it came on, the plaintiff proceeded across the intersection westerly with the intention of ■ going across the high level bridge. He had proceeded some 57 feet when he observed defendant’s automobile turning in front of him fifteen to eighteen feet away. His automobile struck defendant’s automobile on the right side, causing considerable damage to both.

It seems obvious that the purpose of delaying the green light for west-bound traffic was to hold traffic back to afford east-bound vehicles making left hand turns, a short surcease from the constant flow of west-bound traffic at this busy intersection, and consequently to allow more automobiles to negotiate the left hand turn than would be possible were the green lights operating in unison.

In my opinion, the mere changing of the timing of standard lights to conform to the practical necessity in the movement of vehicles at a given intersection, cannot, nor does not change the law with respect to such movements. The law for operators making a left hand turn at intersections reads as follows:

“The operator of a vehicle, street car or trackless trolley within the intersection intending to turn to the left, shall yield the right of way to any vehicle, street car or trackless trolley approaching from the opposite direction.” Sec. 6307-41 GC.

The defendant in this case did not yield the right of way to the plaintiff who, under the circumstances, had the preference under the law and as a result the defendant was negligent.

Sec. 6307-2 GC—

“The ‘right of way.’ The right of a vehicle, street car or trackless trolley, or pedestrian, to proceed uninterruptedly in a lawful manner in which he or it is moving in preference to any vehicle, street car, trackless trolley or pedestrian, approaching from a different direction in its or his path.”

This negligence was the proximate cause of the accident. The court below, therefore, in my opinion, rendered the proper judgment in favor of the plaintiff.


author: By LOVE, J:

text:
    FLETCHER, Plaintiff, v. STANTON et, Defendants.
    Probate Court, Montgomery County.
    No. 116298.
    Decided February 21, 1952.

      Scharrer, Scharrer & Hanaghan, Dayton, for plaintiff.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendants.
   OPINION

By LOVE, J:

Eva R. Fletcher, principal income beneficiary of a trust created under the will of John Randolph Fletcher, deceased, seeks a declaration of rights and legal relations as between herself and the remaindermen of said trust. Stated broadly, the Court is requested to distinguish between corpus and income of the trust from the time of its inception in 1927 to the present time.

John Randolph Fletcher died on December 5, 1925, and his will was admitted to probate on December 21, 1925. In Item IV the decedent created a trust in his residuary estate and named George W. Chaffin and Homer J. Schmidt as trustees.- They were duly appointed on September 30, 1927. Applicable portions of Item IV are hereafter set forth:

“Item IV. All the rest and residue of my estate of whatever kind and character and wherever located, of which I may die possessed or to which I may be entitled, I give, devise and bequeath to George W. Chaffin, and Homer J. Schmidt, in trust however, for the uses and purposes and for the benefit of the persons hereinafter named, to-wit: Said Trustees shall hold, manage, and control said property during the continuance of this trust with power as to real estate to improve, lease, rent, sell and convey the same or any part thereof, in the exercise of their discretion; and as to personal property to hold, control, sell invest and reinvest the same in such manner as they may think best, with full power of converting realty into personalty and personalty into realty, having the power to mortgage, plegde property and borrow money. I further authorize and empower said Trustees, in the exercise of their discretion, to carry on any and all business conducted by me at my decease, and to continue the same for such time, as in the judgment of said Trustees, shall be for the best interest of my estate.
“During the natural life of my wife, Eva Rasor Fletcher, the net income shall be paid by said Trustees quarterly, by check as follows:
“To my wife, Eva Rasor Fletcher, Fifty per cent thereof.
“To my daughter, Anna Fletcher Stanton, Twenty-five per cent thereof.
“To my sister, Mrs. Mary Gordon, Thirteen per cent thereof.
“To my sister, Daisy W. Fletcher, of Dayton, Ohio, Twelve per cent thereof.” (Emphasis supplied.)

At his death John Randolph Fletcher owned a business known as the Fletcher Manufacturing Company, which was engaged in processing, assembling, and shipping overhead hardware of various kinds for high power transmission lines used principally by utility companies and large industrial plants.

George W. Chaffin died in September, 1930; and the trust continued under Homer J. Schmidt, the surviving trustee, until his death on December 17, 1947. The business had been operated profitably under the trustees selected by the decedent as disclosed by the accounts, most of which have been entered as exhibits in this proceeding. After Mr. Schmidt’s death, the business was operated by Lily L. Rasor, sister of Eva R. Fletcher, without any trustee until this Court was made aware of the fact prior to April 5, 1949. This Court considered Lily L. Rasor a de facto trustee inasmuch as she had been employed by the decedent as cashier in 1923 and continued as an employe of the trust until Mr. Schmidt became ill in November, 1944 at which time she took over the complete management of the business. This Court required Miss Rasor to file Mr. Schmidt’s final account as well as to account for the period in which she operated and managed the business without a trustee. (See Eighth and Final Account of Homer J. Schmidt, Deceased, filed December 6, 1948, Defendants’ Exhibit 8, and Corrected Ninth Account of Lily L. Rasor filed October 11, 1949, Plaintiff’s Exhibit F.)

On the 7th day of April, 1949 the Court appointed John F. Stanton, James C. Baggott, and Lily L. Rasor as trustees in conformance to a written opinion of this Court dated April 5, 1949. Miss Rasor, however, could not qualify so that she did not become one of the trustees until December 31, 1949. She has been acting as a trustee since that date and, along with Mr. Stanton, has worked in the business. Mr. Baggott resigned on the 30th day of January, 1951. It is to be noted that the trustees were not made parties to this proceeding and have asserted no position in the matter before the Court except insofar as Mr. John F. Stanton is a party defendant in his individual capacity. Miss Rasor was called as a witness for the plaintiff, and Mr. Baggott as a witness for the defendants.

In order to determine the interest of the defendants, Item IV of the will of John Randolph Fletcher must be further considered.

Mrs. Mary Gordon and Daisy W. Fletcher are now deceased; and in reference to his sisters, the testator provided that, if they should die previous to Eva R. Fletcher:

“* * * said Trustees shall pay their shares as follows:
“Fifty per cent thereof to Eva Rasor Fletcher.
“Twenty-five per cent thereof to Anna Fletcher Stanton.
“Twenty-five per cent thereof to remain in the trust fund.”

Item IV then sets forth carefully worded contingencies and finally a termination of the trust after the death of Eva R. Fletcher. At the present time the plaintiff, Eva R. Fletcher, is entitled to the net income of the trust in the amount of sixty-two and one-half per cent (62%%), Defendant Anna F. Stanton is entitled to net income in the amount of thirty-one and one-quarter per cent (3114%), and six and one-quarter per cent (6!4%) of the net income is being withheld.

Item IV is so worded that, if Anna F. Stanton, decedent’s daughter, survives Eva R. Fletcher, his widow, she will receive the entire trust corpus; on the other hand, if she does not survive, the trust corpus will pass to Defendant and Trustee John F. Stanton and Defendant Marvin L. Stanton, Jr., sons of Anna F. Stanton.

The defendants have filed an answer raising three defenses to plaintiff’s petition.

From the pleadings, the evidence, and briefs of counsel the Court will state the questions to which the plaintiff seeks a declaration of rights. Pertinent facts, when required, will be set forth as a part of the answer to each question.

I. IS THE CORPUS OF THE TRUST CHARGED WITH A CLAIM OF THE INCOME BENEFICIARIES ARISING AT THE INCEPTION OF THE TRUST?

In propounding the first question plaintiff contends that she has a claim against the remaindermen because the corpus distributed to the original trustees at the time of the settlement of the final account of the executor was unlawful and incorrect in that debts of the estate were paid out of the income of the business, part of which belonged to the plaintiff.

Defendants contend that this question has been previously adjudicated by an order settling the account of the executor and cannot now be made the subject of a declaratory judgment.

The first and final account of the executor filed November 5, 1927 and approved January 3, 1928 discloses affirmatively that part of the profit from operating the Fletcher Manufacturing Company was used to pay estate obligations in the amount of $8,337.84. On the other hand, the executor set forth that $20,874.86 is profit from the business and $8829.40 is in the principal account. The account shows receipts of $145,070.28 and expenditures of $115,336.97, leaving a balance of $29,703.31 which was turned over to the trustees. The explanation made by the executor is not entirely understandable, and the figures are not correct to the penny; however, all of the beneficiaries, including the plaintiff, signed the following statement:

“The undersigned, being all the legatees and devisees under the Will of said John R. Fletcher, deceased, hereby certify that they have examined the above account, and approve the same.”

The trustees, in addition to receipting for $29,703.31, signed the following statement:

“September, 1927.
“Received of Ellis P. Legler, Executor, all personal chattels constituting assets of Fletcher Manufacturing Company, bequeathed to the undersigned under the terms of Will of John R. Fletcher, deceased.”

No exceptions were filed to said account.

Assuming that plaintiff is correct that estate obligations were paid out of income, a part of which belonged to plaintiff as of the date of her husband’s death, an examination of the will discloses why it was done and why the executor sought the approval of the beneficiaries to his account. In prior items of decedent’s will he had given his personal effects, household furniture, and his home to his widow outright. As pointed out before, it was the residuary clause which created the trust. As plaintiff argues, it would be the residuary estate which would be liable for estate obligations, and this Court has no quarrel with the law cited by plaintiff in support of her position. But it was this very residuary estate which created income for the widow. It is conceivable, therefore, that in order not to sell the business, the profits of it were used to free the estate-from the claims of creditors. Otherwise, the corpus would have had to be sold to pay estate obligations. Plaintiff must have known that it was the corpus that produced the income and that, therefore, it had to be freed of estate obligations. What the executor considered business profit was transferred to the trustees and later distributed as income as disclosed by the trustees’ first account. No fraud, misrepresentation, or mistake of fact has been alleged or proved by the plaintiff. The account was final. While it did not specifically include and spell out all corpus in detail, it did contain some reference to corpus and; when considered with the estate inventory, there can be no question that the plaintiff knew just exactly what she was approving even though twenty-five years later she claims she did not.

This Court rejects plaintiff’s theory, therefore, on three grounds; all of which are so fundamental that no further analysis is required:

1. The order approving the final account of the executor cannot be opened up by a declaratory judgment proceeding. It is a final order and binding upon all those who approved the account. The principle of res judicata applies. See §§10834 (repealed 114 v. 320), 10835 (repealed 114 v. 320), 10842 (repealed 114 v. 320), and 10506-40 GC, (eff. 9-29-45); McAfee v. Phillips, 25 Oh St 374 (1874); Henry v. Doyle, 82 Oh St 113, 91 N. E. 990 (1910); Crawford v. Ziegler. 84 Oh St 224, 95 N. E. 743 (1911); 16 Am. Juris., Declaratory Judgments, Section 29, pages 302, 303.

2. Laches would bar the plaintiff from making any claim against the remaindermen under all the facts and circumstances disclosed at the trial. See 16 O. Jur., Estoppel, Section 37, pages 589, 590.

3. Estoppel would be equally available as a defense. See 16 O. Jur., Estoppel, Section 2, page 552, and Section 34, pages 586,. 587. In opposing defendants’ defense as to estoppel, counsel for the plaintiff has cited Holmes v. Hrobon et, 61 Abs 113 (1951), particularly the principles of law set forth by the Court in Syllabi 16, 17, and 18. This Court is of the opinion that said case is distinguishable from the case at bar, particularly as it relates to the final account of the executor of the estate of John Randolph Fletcher. It is not necessary for this Court to pass on the question of estoppel as it relates to the trustees’ partial accounts in view of this Court’s holding under Question II.

While the Court is of the opinion that this proceeding cannot open up the executor’s final account so that the widow can claim an interest against the remaindermen, the Court is of the opinion that a declaratory judgment proceeding can be used to clarify the effect of previous judgments and orders of the Court as they relate to successive beneficiaries of a trust and to determine rights and legal relations resulting therefrom where difficult questions have arisen as a result of the administration of the trust. Accordingly the Court is required to declare as nearly as possible what the corpus of the trust is.

II. WHAT IS THE CORPUS OF THE TRUST IN WHICH THE REMAINDERMEN HAVE AN INTEREST AND FROM WHICH THE PLAINTIFF CLAIMS HER RIGHTS AS AN EQUITABLE LIFE BENEFICIARY?

The corpus is the business known as the Fletcher Manufacturing Company. But what constitutes the business is a much more difficult question.

At the outset the Court must inquire as to what the corpus was when the trust was created. The Court is of the opinion that the remaindermen’s interest in the corpus began with the trustees’ inventory filed and recorded on November 19, 1927, to which no exceptions were taken. This inventory forms the basis for administering the trust res. The total principal as reflected by said inventory is as follows:

Cash on hand and accounts receivable______$ 9,703.31

Inventory of Merchandise on hand__________16,763.53

Total personalty ----------------------------$26,466.84

Realty carried at -------------------------- 31,000.00

TOTAL $57,466.84

Added to this are the personal chattels of the Fletcher Manufacturing Company for which the trustees receipted but which are not disclosed in the inventory or in subsequent accounts. The value of this item is unknown. Thereafter the trustees reported receipts, expenditures, and distributions of profit without any reference to or the segregation of corpus.

Before answering the question it is necessary to digress briefly and comment on the administration of the trust and events which occurred when this Court first discovered that the trust was operating without a trustee.

In an entry filed April 7, 1949 at 3:40 p. m. the Court found:

“(1) The business has been operated profitably.
“(2) To some degree the business as established by John Randolph Fletcher has prospered under its own momentum, not without the expert assistance however of the trustees and Lily L. Rasor since her connection with the business.
“ (3) The business is operating in the past with little thought to the future.
“(4) The business is being operated almost exclusively for the benefit of the income beneficiaries.
“(5) Little consideration has been given to those who may ultimately own the corpus.
“(6) Modern business practices are not being applied to the extent necessary for the proper operation of the trust.
“(7) All of those who seek to be successor trustees are competent and qualified to act in such capacity.
“It appears from the evidence that the interests of the trust and the beneficiaries would be best served by appointing all three applicants, Lily L. Rasor, John F. Stanton, and James C. Baggott.
“The accounts which have been filed in the past are wholly unsatisfactory and the Court cannot obtain detailed information on the operation of the trust from such accounts, to all of which finding of fact, Lily L. Rasor by her counsel excepts.” On the same day at 3:41 p. m. another order was journalized, a part of which reads as follows:
“WHEREFORE it is ordered, adjudged and decreed that Lily L. Rasor, John F. Stanton and James C. Baggott, be and are hereby appointed successor trustees under said will of John Randolph Fletcher, deceased, with full power and authority to continue to conduct and operate the business known as Fletcher Manufacturing Company in accordance with the provisions, purposes and powers established by the terms of said will and in conformity with the opinion of the Court rendered herein on April 5, 1949.
“It is further ordered that said Trustees employ a competent accountant or accounting firm to get the affairs of the trust in such condition that the accounting will disclose in detail the operation of said business and to report the results thereof to this Court upon completion of such accounting work.”

The main purposes in authorizing the employment of accountants were: (1) to reconstruct as nearly as possible the corpus of the trust and (2) to set up a modern and workable set of books not only to make it possible for the trustees to comply with the law as to separately identifying receipts and disbursements as to principal and income (see §10506-34 GC) but also to assist the trustees in putting into effect modern business practices for the benefit of all beneficiaries of the trust, having in mind that the trustees were required to operate a business which is a hazardous undertaking in and of itself. Thus it became necessary for the trustees, with the help of their accountants, to reconstruct the corpus in order to have a workable basis for the trustees to operate the business in the future without committing a breach of trust and making them liable to the beneficiaries.

It is at this point that this Court wishes to make clear that the plaintiff has wholly failed 'to prove that the remaindermen have in any way gained an advantage at the expense of the income beneficiaries against which the corpus should be charged.

The plaintiff has failed to reconstruct the corpus or to distinguish between what is income and what is corpus over the twenty-five year period covered by this proceeding. The only evidence as to what is corpus is that which has been determined as such by the accounting firm employed by the trustees. At the most this can only be an estimate; however, for the most part the estimate or appraisal of that which is now corpus was arrived at in a reasonable and sound way, applying modern and sound accounting principles. Except as hereinafter modified, the Court accepts the corpus to be that which the accountants have found it to be. There is no other evidence or basis upon which this Court can come to any other conclusion.

Plaintiff’s Exhibit H and Defendants’ Exhibit 1 purport to be statements of inventory of net assets prepared by the firm of accountants employed by the trustees. These instruments disclose a total corpus of $57,440.00. In the Ninth Account of Lily L. Rasor filed August 13, 1949 covering a period from December 17. 1947 to April 7. 1949, during which she operated the trust without a trustee, the same figure is used. (See page two of said account.) However, the following footnote appears:

“Without an examination of the books from date of J. R. Fletcher’s death, it is impossible to ascertain whether this is corpus or corpus and income.”

Because of this statement, exceptions to the account were filed by one of the remaindermen. Subsequently a Corrected Ninth Account was filed using the same figure as corpus with the following statement:

“John R. Fletcher Estate $31,000.00
“Real estate capitalized 26,440.00
57,440.00”

The beneficiaries approved this account, limiting their approval however to receipts and disbursements and “not to the allocations of assets by accountant.” (See Plaintiff’s Exhibit F.) The Court has compared this figure and the detailed breakdown of net assets with the trustees’ inventory filed May 27, 1949 and their supplemental inventory filed June 3, 1949, both of which were approved, no exceptions having been filed, and finds the corpus figures as reconstructed by the accountants to be comparable to that with which the new trustees have charged themselves.

Now it is true that, when one compares the breakdown of corpus in existence today with that which was corpus in 1927, there are differences. Some of the assets are held differently, and how this came about would be mere conjecture. There is no proof. Eliminating all attempts of the accountant to depreciate assets and reflecting upon the cash balances in banks and bonds, it may well be that over the years income has crept into the corpus. On the other hand, it is just as logical that doing business in recent years as compared with 1927, the manner of keeping the books and such things as inventory values, merchandise changes, reserves for equipment, and the increased cost of merchandise would give rise to a normal increase in the value of • corpus since the inception of the trust. Suffice to say that plaintiff has not shown that the present corpus as reconstructed contains any income to the detriment of the income beneficiaries. The fact remains that the reconstruction discloses a similarity to the corpus which existed at the trust’s inception. This similarity strikes the chord of reasonableness. And reasonableness seems to be the only equitable principle left upon which this Court can determine the issues of this case based upon trust law as this Court understands it. It must always be kept in mind that the difficult question of reconstruction of corpus in order to fix the rights of the parties in interest is due in a large measure to the methods employed by the trustees over the years and not by the beneficiaries of the trust except insofar as they have failed to object to the methods employed by the trustees. The finding of the Court, therefore, that the corpus is as the accountant has reconstructed it as shown by the instruments already mentioned is modified to the following extent:

The depreciation in arriving at the total value of the corpus allocable to buildings is disallowed. The Court is of the opinion from the evidence that the building which has been used by the Fletcher Manufacturing Company since 1907 is susceptible to ordinary repairs which would be chargeable out of income. Since the new trustees appointed by this Court have improved the building out of funds, the source of which is not known, and since the useful life of the building may extend beyond the trust period, the Court believes that, while it might be good accounting practice, so far as the trust is concerned, the building should not be depreciated. It is said in Scott on Trusts, Section 239.4:

“Where the trust estate includes a building, the question arises whether the trustee can properly set aside, or is even under a duty to set aside, out of income a reserve for depreciation and obsolescence. Buildings ordinarily tend in course of time to become less valuable, both because of physical deterioration and because they are likely to become less suited to their purposes than those more recently built; in other words, they tend to become less valuable through depreciation and obsolescence. There is surprisingly little authority on the question whether the trustee has a power or a duty to set aside out of income a reserve for depreciation. It has not been the practice of trustees to set aside such a reserve. It has not been the practice of trustees in administering trusts to apply the principles which are applied by business men in the conduct of their business. Very possibly the need of setting aside a reserve for depreciation of buildings has not been acutely felt, either by trustees or beneficiaries or the courts, because of a feeling that the value of the land on which the building rests is likely to increase at least as fast as the value of the building depreciates. In a rough way in the past this has been true, but it is improbable that it will continue to be true in the future. Certainly during the years which followed the debacle of 1929 land values have not only ceased to rise but have fallen enormously.

“As far as the decisions go they indicate that the trustee is not under any duty to the remaindermen to set aside a reserve for depreciation of buildings, and even that he owes a duty to the life beneficiaries not to do so. That the trustee has no duty to set aside a reserve for depreciation, and is not liable to the remaindermen for failing to do so, seems to be indicated by the decisions.” (Cases cited; also see Estate of Edgar, 157 Misc. 10, 282 N. Y. Supp 795 [1935].)

At page 1344, however, it is said:

“There are indications that where the trustee is conducting a business on the premises, such as a manufacturing business, he should set aside such a reserve.” (Cases cited.)

On page 1345 it is said:

“The trust estate may include a building of which there is no likelihood of loss in value as long as it is kept in repair.”

For a recent article on the subject, see Ohio State Law Journal, Vol. 12, No. 4, Autumn 1951, at page 565.

HI. DOES THE PLAINTIFF HAVE A CHARGE AGAINST CORPUS FOR STREET AND SIDEWALK ASSESSMENTS?

This matter was mentioned briefly during the trial of the case and also in the brief of the plaintiff.

Plaintiff claims that $3699.81 was paid out of income. There is no evidence to show the source of the payment. In fact, the accountant testified that he did not know how it was paid. Miss Rasor said it was paid out of income, a mere conclusion. Also, there was no evidence as to the probable life of the improvement. Ordinarily street assessments would inure to the benefit of the corpus and should be paid out of this source and amortized over the probable life of the improvement where the assessment will not extend beyond the life of the trust.

It is said in Scott on Trusts, Section 233.3, at pages 1264 and 1265:

“The cost of improvements to property held as part of the principal is payable out of principal. This includes not only improvements made by the trustee but also special taxes or assessments for improvements such as the laying or paving of streets, the construction of sewers, and the like. It is sometimes said that the cost of such improvements is to be apportioned between life beneficiary and remainderman. * * *
“Where, however, the improvements are not of a permanent nature, especially where the probability is that they will not last longer than the probable duration of the trust, a further adjustment has to be made in order to treat both life beneficiary and remainderman fairly. In such a case the investment will be treated as a wasting investment, and the trustee is under a duty to the beneficiary who is entitled to the principal to make provision for amortization.”

Also see Scott on Trusts, Section 239, pages 1332 and 1333. The Court cannot determine this question in the case at bar.

IV. SHOULD CERTAIN REPAIRS, REPLACEMENTS, AND IMPROVEMENTS MADE BY THE NEW TRUSTEES BE CHARGEABLE AGAINST CORPUS OR INCOME?

The evidence discloses that the corpus had deteriorated. The repairs, replacements, and improvements which were made by the trustees and which both sides conceded were necessary were paid out of a bank account, the source of which is unknown. The rules applicable to ordinary repairs, replacements, and improvements vary. These rules can be found by reading Scott on Trusts which this Court considers an excellent authority on the subject. See Sections 233, 233.1, 233.2, 233.3, and 239. Also see Restatement of Trusts, Sections 233 and 239. However, since the source of the funds which paid these improvements is, by reason of this opinion, corpus, the Court can make no ruling as the income beneficiary has not'sustained the burden of proof necessary to show that she has been prejudiced or that the remaindermen have gained an advantage to her detriment.

While the trustees are not a party to this proceeding, the Court is- of the opinion that depreciation or the creation of reserves or the amortization of the cost of machinery and equipment used in the business is perfectly proper and should be continued.

The trustees should have been made parties to this proceeding, as some of the questions raised during the course of the trial related to trust administration which can never be ignored in any proceeding which seeks to declare rights and legal relations between successive beneficiaries. The Court asked the accountant what doubtful questions relative to income and corpus in this trust he had found which should be resolved. (See page 120 of transcript.) Some of these doubtful questions have already been answered, but the following question has not:

Is it necessary for the trustees to stick strictly to the will in distributing the income quarterly or may the trustee make advances to the beneficiaries and make a distribution once a year when they determine a gain or loss for the year?

In view of the evidence the Court is of the opinion that, while income must be paid quarterly as provided by the will, the trustees may withhold a reasonable amount of income to meet present or anticipated expenses which are properly chargeable to income until the end of the year at which time all net income must be distributed. The Court calls counsel’s attention to Section 182, pages 968 and 969, Scott on Trusts, which in part reads as follows:

“The trustee can properly withhold enough of the gross income to meet not only present but anticipated expenses which are chargeable to income. In order to equalize the income from year to year he may estimate in advance probable expenditures and build up a reserve to meet such expenditures.”

Also see Restatement of Trusts, Section 182, page 467; In re Sedgwick, 74 Oh Ap 444, 30 O. O. 65 (1944), Syllabus 8. In view, however, of the strong language used in the will with respect to paying income quarterly, the Court suggests that the trustees obtain a consent from the income beneficiaries each time income is to be withheld. This would avoid any future liability on the part of the trustees for failure to distribute quarterly even though this Court is of the opinion under proper circumstances some of the income can be withheld until the end of the year.

In conclusion, therefore, on the evidence and the law, this Court finds all the parties to be in status quo with respect to the trust res and the distribution of income, subject, of course, to any modification contained in this opinion. It is expected that the present trustees will go forward in administering the trust as it has been reconstructed with the cost of repairs, improvements, and replacements being charged as they were charged in the accounts already submitted without recovery from either side against the other. From this point on the trustees are to follow recognized trust law with respect to charging income and corpus and when in doubt to seek the determination of this Court. It is believed that under all the circumstances of the case as disclosed by the evidence equitable conclusions have been reached and substantial justice accomplished.

Even though the trustees were not made parties, the trust will benefit from the declaration of rights resulting from this litigation; wherefore, it is the judgment of this Court that costs of this proceeding shall be charged one-half (Vz) to income and one-half (Vz) to principal. The Court is also of the opinion that compensation- to counsel for services rendered the beneficiaries shall be charged in the same manner upon proper application of the trustees. See §10506-52 GC.

Counsel may submit an appropriate entry.


author: By THE COURT: By THE COURT:

text:
    FLETCHER, Plaintiff-Appellant, v. STANTON et, Defendants-Appellees.
    Ohio Appeals, Second District, Montgomery County.
    No. 2229.
    Decided January 22, 1953.
    Scharrer, Scharrer & Hanaghan, Dayton, for plaintiff-appellant.
    Landis, Ferguson, Bieser & Greer, Dayton, for defendantsappellees.

      Decided December 4, 1953.
   OPINION

By THE COURT:

Submitted on motion of appellees to dismiss, the appeal taken on questions of law and fact.

The action is one for a declaratory judgment. It is not such an action as was formerly cognizable in a court of chancery, and, therefore, is not appealable on questions of law and fact.

The motion to dismiss will be sustained; the case will be retained as an appeal on questions of law. Sec. 12223-22 GC.

The Court grants leave to appellant to flle bill of exceptions, assignments of error and briefs within the time provided in the Supplement to Rule VII.

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

FLETCHER, Plaintiff-Appellant, v. STANTON et, Defendants-Appellees.

No. 2229.

OPINION

By THE COURT:

This cause is presented on appeals instituted by the plaintiff and the defendants from a declaratory judgment of the Probate Court of Montgomery County, Ohio. The questions presented for determination by the pleadings relate to a trust created under the Last Will and Testament of John R. Fletcher, deceased. The plaintiff and the defendants were beneficiaries under the trust. John R. Fletcher died December 5, 1925.

Plaintiff sought a declaratory judgment determining what amounts and assets in the trusteeship at the time of establishing such trusteeship are corpus of the estate, what are profits or income derived from the corpus and what amounts and assets of the trusteeship, according to the last account filed in the Probate Court, are corpus of the estate and what amounts are income belonging to the beneficiaries, and for such other and further relief as will clarify the rights of the present beneficiaries as to the income and the remainderman, as to the corpus after the trusteeship ends, and further, what contribution should be made by the remaindermen and the beneficiaries of income, toward repairs and upkeep of the buildings and merchandise equipment of the trusteeship.

The plaintiff contended that there had been an accumulation of distributable income during the administration of the testamentary trust. The defendants answered. The first defense was a general denial that there had been an accumulation of distributable income as alleged in the petition. For a second defense it is averred that plaintiff has waived any and all rights to question the distributions of net income made pursuant to the Last Will and Testament of John R. Fletcher, deceased, to and including November 1, 1948, and by a third defense set up conduct of the plaintiff which it was claimed estopped her to deny that the distributions of the income had fully complied with the terms and provisions of the last will and testament of John R. Fletcher, deceased.

In the appeal of plaintiff, two errors are assigned:

1. Refusal of the court to go into the first and final account of the executor of the Fletcher estate to establish what was the corpus of the estate at the death of John Randolph Fletcher. And erred in not starting the trust at the time of the death of John Randolph Fletcher instead of after the filing of the first and final account.

2. Error in not specifically charging against the corpus the items of repairs and replacements on the building and in the business, and the assessments against the real estate.

The appeal of the defendants is directed to the findings and judgment of the trial court in disallowing certain depreciation charges with respect to the building used and occupied by the Fletcher Manufacturing Company.

The trial judge gave consideration to the questions presented and decided them in an extended written opinion which by agreement of counsel was incorporated into a finding of facts. Upon this finding of facts a judgment was entered consisting of eight specific adjudications. The court found with the defendants on all three of the defenses of the answer, but against them and their contention as to the allowance of depreciation on the real estate.

We are impressed with the care and consideration which Judge Love has given to the questions presented for his determination. He had an exceptional appreciation of the facts and of the legal principles controlling. Most of the issues were factual. There were no substantial differences as to the law controlling except as to the item of depreciation of the real estate. All questions presented by the appeals are fully answered in the written opinion with which we are in accord.

The judgment will be affirmed in its entirety.

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


author: By BIRRELL, J.

text:
    UNITED STATES GYPSUM COMPANY, Plaintiff, v. UNITED STEEL WORKERS OF AMERICA et, Defendants.
    Common Pleas Court, Trumbull County,
    No. 62441.
    Decided March 16, 1953.

      Hoppe, Day & Ford, by Ford, Warren; Macleish, Spray, Price & Underwood, by Cate, Chicago, Illinois, for plaintiffs.
    Hershel Kriger, Canton, for defendants.
   OPINION

By BIRRELL, J.

In this case there is no dispute in the evidence that a strike was called October 31, 1952, and that picketing commenced and continued at the entrance of Plaintiff’s Plant culminating in the incident of March 5th, 1953. Until March 3rd the picketing had been accomplished by Plaintiffs’ striking employees with certain individual exceptions. On March the 3rd a number of strangers appeared in the picket line which on March 5th was augmented to a total number unanimously estimated at between sixty and a hundred and fifty. On March 5th violations occurred in that non-striking employees and management officials were forcibly prevented from entering the plant. This was accomplished by a barricade placed across the entrance and mass-picketing which prevented automobiles from entering, and by forcibly lifting, rocking and apparently attempting to over-turn and breaking windows in, an automobile occupied by four of the supervisory personnel. The intention of these activities, admitted by the President of the Local Union was to prevent any one from entering the Plant. With this expressed intention and the showing of force sufficient to accomplish this purpose, it is not to be wondered at that neither management nor employees attempted thereafter to enter the Plant, or desired to risk their safety in such attempt.

In this situation the Plaintiff has requested the Court to issue a temporary restraining order enjoining these parties from picketing in this manner, doing certain other inflamatory acts, fixing the number of pickets to be allowed at this entrance, and requesting that upon final hearing such injunction be made permanent. It would appear from an unbroken line of authorities in Ohio and in this County that such requests have been granted in previous instances. In fact it is surprising that a reputable Union should bodily assume the prerogative of bringing about conditions that would invoke such orders from this Court.

There can be no dispute on either side of this case of tne legal principles governing this situation:

(1) Manufacturing concerns have the right to offer wages and maintain their industries so long as statutory regulations are complied with.

(2) Both individuals and Corporations have the right to protection of the law against injury to person and property.

(3) Employees are permitted to refuse to work and strike if they so desire.

(4) Peaceful picketing is lawful.

(5) No one has the right to take the law into his own hands.

(6) Employers are permitted to continue their operations after strikes have been called.

(7) A group of persons has no greater right than an individual, to interfere with the lawful operation of a business of either an individual or a corporation.

In this case the Defendants attempt to excuse themselves for their actions by claiming that the Plaintiffs did not “come into equity with clean hands” in the respect that Plaintiffs failed to bargain about certain matters and demands of the Union. Although the Local Union has been certified as the bargaining agent of Plaintiffs’ employees and although Plaintiffs have not agreed to the demands of such bargaining agent, there is no justification in law for the Union’s claim of a right to close Plaintiff’s establishment because Plaintiff has not acceeded to the Union’s demands.

The National Labor Relations Act requires employers and Labor Unions to “bargain” upon the question of wages, hours and working conditions. The evidence indicates that bargaining between the parties of this law suit commenced prior to, and formally with, a meeting of October 2nd, 1952 and continued at further meetings of October 15th, October 20th, October 31st, November 25th, November 28th, December 18th, December 20th, and December 22nd without the parties being able to reach a final agreement. It continued through letters, telegrams and newspaper advertisement of the respective parties under dates of November 15th, December 12th, December 31st, 1952, February 6th, February 9th, February 12th, February 18th, February 28th, March 3rd, March 7th and March 10th, 1953. The correspondence concludes with the expression of intention and desire of both parties to continue bargaining. Defendants claim that Plaintiff has stated an irrevocable decision on certain of the bargaining subjects. Plaintiff states that Defendants have not produced valid reasons to persuade Plaintiff to change its present view on these particular subjects. Certain concessions have been made by Plaintiff which were unacceptable to Defendant, among which was the offer of increased wages made at the commencement of the bargaining, or some time prior thereto.

The Court has searched the authorities cited on behalf of both Defendants and Plaintiffs on the question of the extent to which parties are required to bargain and finds no authority which requires either party in their bargaining to accept or allow the demands of the other party. In fact in an earlier controversy between Plaintiff and the International Wood Workers of America, decided by N. L. R. B. on May 1st, 1951, and reported at Vol. 94, N. L. R. B. Decisions 112 at p. 116 the Board states “As for the alleged impasse regarding Union security, check off, straight seniority, and arbitration, it is true that Respondent was not required to yield on these or any other specific Union proposals.” While the Federal Courts have uniformaly held that these matters are subject of collective bargaining no authority has been suggested indicating that either party must acceed to the other’s demands in these respects. N. L. R. B. v. Hart Cotton Mills 190 Fed. 2d 964. See Article by Mr. Woolsey in XXVI Ohio Bar No. 2 (Jan. 12, 1953) entitled “The Supreme Court Docket.”

With reference to the offer of increased pay which was not accepted by the bargaining agent, our Federal Courts have held that where increased pay has been offered and refused by the bargaining agent it is not an unfair labor practice to grant concessions in wages to employees during the period of negotiations. N. L. R. B. v. Bradley Washfountain Co., 192 Fed. 2d 144 (Nov. 1951) N. L. R. B. v. Crompton-Highland Mills 167 Fed. 2d 662 (May 1948) and it is likewise not an unfair practice for an employer to communicate with his employees and suggest that they return to work so long as he does not interfere with, or attempt to by-pass, the Union as bargaining agent, or limit the offer or penalize non-returning employees. N. L. R. B. v. Penokee Veneer Co. 168 Fed. 2d 868; 4 A. L. R. 2d 1350 (June 1948) Annotations @ p. 1356. Tele. Co. v. N. L. R. B. 192 Fed. 2d 664 (Nov. ’51). N. L. R. B. v. Bradley Washfountain Co. supra.

This Court has no power to nor intention of assuming the authority of the National Labor Relations Board or the Federal Court, in the respect of the requirements of “bargaining” between these parties. The matter comes before this Court only in the claim of Defendants that the Plaintiff has not come into Court with “clean hands.” The examination of the cases cited fail to convince this Court that this claim has been substantiated in the respect designated by Defendants.

Nor is this Court impressed with the Ohio precedents wherein relief has been refused or wherein conditions have been attached by the Court to the granting of relief.. In our own County, in the 1937 Steel strike certain conditions were attached by reason of the evidence which indicated violations on the part of the Plaintiffs as shown at page 517 of the report of Republic Steel Corporation v. I. S. & T. Workers of America, 8 O. O. 514. Our Court did not refuse the injunction on account of the actions of certain of the Plaintiff employees. In Cuyahoga County the violation of the National Recovery Act by the Plaintiff was held ground for refusing an Injunction in two cases. Bernstein v. Cleaners & Dyers Association, 31 N. P. N. S. 433; Cleaning and Dying Company v. Brickner, 32 N. P. N. S. 177, and in Stark County in certain unreported cases the Plaintiffs were restrained from hiring new employees and ordered to engage in collective bargaining, Case No. 88522 Stark County Common Pleas Court; And from permitting these employees to work in the business of the employer. No. 93875-Stark County Common Pleas Court. It should be noticed again that the injunctions were granted although subject to these conditions which may have been justified by the evidence.

With reference to the order , of Judge Maiden at Case No. 124908 Mahoning County Common Pleas Court, it may be noted that Judge Maiden recessed from 2:15 P. M. until 10:00 A. M. the following morning to permit the parties to have opportunity for bargaining. This Court recessed this hearing from Tuesday at 4:30 P. M. to Thursday at 9:00 A. M. and from Friday noon, last, until this Monday morning, which afforded time wherein “bargaining” could have been resumed at the desire of the parties. From the testimony of the Staff Representative of the Union that certain demands were its minimum requirements, and of the Plaintiff’s manager that the arguments on those particular points were not sufficient to convince him that the Unions’ concession should be adopted by his Company, and the expression of the Labor Board above referred to, it would seem to this Court that request for further time for compulsory bargaining on those subjects merely constitute dilatory tactics. Judge Maiden in his Opinion states “Until such time as the procedure before the National ■ Labor Relations Board becomes stabilized it is necessary for a State Court of Equity to preserve peace and order in its community, and “TO DO WHATEVER MIGHT BE REQUIRED TO SO DO” with which not only his Court but also Judges Barthelmeh and McLaughlin of Stark County were in accord.

This Court understands and appreciates the various references made to the equitable principle that “one desiring equity must do equity.” And were the facts in this case such that the Plaintiffs were shown to be guilty of inequitable practice this Court would be as ready as any other Courts to require “equity” before granting relief. The mere evidence, or rather suggestion, that Plaintiff has not been willing to grant as many benefits (“fringe benefits”) as other employers in this area have granted, does not prove that Plaintiff is guilty of inequitable practices. This Plaintiff may not be as generous an employer as are other employers in this District. It may not pay as much money; it may not grant as many “fringe benefits”; its policy on pensions, arbitration, Union security or Union shop may not be as acceptable to employees or Union members as the policy of other employers in this district. Such restraint is not necessarily “inequitable.” The remedy is not to be found in gathering together those who' do not admire such practice and attempting, “vi et armis” to prevent the employer from carrying on his business. The remedy is for those who do not accept his wages and terms to secure employment elsewhere, and to where more money and more benefits are paid, which should not be difficult considering the testimony that all other employers in this area are more liberal than is this Plaintiff.

The evidence indicates that the picketing in this case was peaceful as long as it was conducted by the members of the Local Union, which the Court recognizes and compliments it therefor; but that as soon as the direction was taken over by the District officers trouble commenced. The evidence of their Staff Representative indicates that all other industries in this District have granted their Unions concessions in certain respects and they see no reason why this Plaintiff should enjoy the privilege of not conforming to the same terms as are embodied in the contracts of other employers. From the viewpoint of the Union this may be a laudable ambition, but it does not constitute an excuse for closing the Plaintiff’s plant, preventing its operation, threatening its employees, assaulting its officers or destroying its property. Neither the District nor the National officers have any right or power greater than any other individual to do, or incite, violence on any picket line.

This Court, under the evidence presented in this case, believes that it should enjoin such picketing as is other than peaceful, and therefore grants the temporary RESTRAINING ORDER AS PRAYED FOR, pending final hearing of this case. It would appear that the number of pickets at the gate should not exceed five (5) at any one time.


author: By SKEEL, J:

text:
    GOLAK, Plaintiff-Appellant, v. KASSOUF, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22873.
    Decided April 21, 1954.
    Siegel & Siegel, Cleveland, for plaintiff-appellant.
    Klein & Klein, Cleveland, for defendant-appellee.
   OPINION

By SKEEL, J:

This appeal comes to this court on questions of law and fact from the Common Pleas Court of Cuyahoga county. The action is one seeking to cancel a contract between the parties- on the ground of fraud. The parties to this action entered into a contract on July 28, 1952, whereby plaintiff purchased from defendant a grocery business located at 7915 Detroit Avenue. It is claimed by the plaintiff that the defendant knowingly and fraudulently represented the weekly income of the business to be between $750.00 and $800.00 per week, not including credit sales, and $900.00 to $950.00 including such sales, when, in fact, the sales did not exceed $400.00 to $450.00 per week, whereby plaintiff was induced to purchase said business by reason of such fraudulent representations.

The questions presented here are purely questions of fact, and whether the required degree of proof has been met by the plaintiff’s evidence.

The plaintiff’s contention is that the defendant made the positive representation as to income, that is, that the “cash sales amounted to between $750.00 and $800.00 per week (not including credit sales)” and that such representations to defendant’s knowledge were false and constituted in fact the inducing cause of the sale. As proof that such representations were untrue, the plaintiff and her witnesses testified that from the moment she took possession of the store the sales averaged about $445.00 per week. She also depends on the defendant’s record of daily receipts in support of the claimed misrepresentations.

The defendant denies making such representations and also claims that before the plaintiff bought the business she was shown the defendant’s day-by-day record of cash sales and the cost or money expended in conducting the business.

It is evident, therefore, that the claims of one side are the absolute negation of the claims of the other side, so that if the court comes to the conclusion that the evidence is of greater credence on the side of the plaintiff than that of the defendant, and that the evidence of the defendant is without credence or support, then there can be no doubt but that the court should hold that the plaintiff has made out her case by clear and convincing evidence. •

The plaintiff testified that she saw the defendant’s ad seeking to sell his business, in the newspaper. She called the telephone number as published, a lady answered, and upon inquiring the price, was told that the selling price was $5000.00. The evidence also shows that when the plaintiff upon going to the store asked the price, the defendant said $5500.00, and when told what his wife had said, he at once agreed that if that was what she said, then the plaintiff could have the store for $5000.00. He finally sold the store to plaintiff for $4800.00.

Defendant’s wife, as a witness; testified that she did not know what the selling price was, had never discussed it with her husband although the only telephone was in the living quarters on the second floor and she acknowledged that she expected to answer inquiries of those responding by telephone to the advertisement, and that she did not know what the store income was, although she worked in the store at times. These statements of the witness, in logic and common sense are so unbelievable as to completely destroy her credibility and throw much doubt on the side that called her.

The defendant’s witnesses, Nick Sanfillippo (delivery boy and helper in the store) and Keating (the landlord) both testified that they saw the plaintiff’s husband look at the defendant’s book showing income of the store and they both testified that after the plaintiff took over the store business dropped off. Yet, an examination of defendant’s Exhibit 1, which is his record of income, shows that for the week of June 9th there were $680.00 cash sales, the week of June 16th, $627.00 cash sales, and for the week of June 23, $643.49. The first week in July the cash income was $492.00; the second week $455.00, and the last week the defendant was in charge, $537.00. The plaintiff’s books show that for the five weeks she was in charge the sales were $497.00, $486.00, $422.00, $417.00 and $459.00. Certainly the difference is not enough for anyone to note the loss in the number of customers over a weekly period. These witnesses cannot strengthen the defendant’s defense and it should be noted particularly that the witness, Keating, is now plaintiff in an action for damages against this plaintiff.

The defendant denies categorically ever having made any representation as to the income of the store and testified that the average gross income, while he owned the store, was $485.00 per week. The defendant’s book, where he kept the cash income and expenses, shows that for the two-year period before the sale to the plaintiff, there were a number of months when losses were experienced and the profits shown on most of the other months were, to say the least, meager. The defendant testified that the income from credit sales was about $100.00 per month which income did not show in the book. But even with such added income, the business, as shown by defendant’s records, was not a profitable venture, and his daily income never reached the figure of $800.00 per week. The defendant says also that he took back the business from the plaintiff after the plaintiff had operated it for six weeks and it had been closed about eight or nine days after plaintiff left and after operating the business for a short time, sold it to his landlord, the witness Keating, for $1500.00 plus the $500.00 deposit for rent. It is incredible to believe that the plaintiff did not inquire about the income as he says he did before making the purchase, or that the value of the store decreased from $4800.00 to $1500.00 in six weeks.

The defendant, to negative the materiality of claimed misrepresentations, calls attention to the fact that the plaintiff was in possession of the business for four days before the contract was signed, thereby having first-hand knowledge of the income, and thereafter went into possession and conducted the business after the contract was signed, while the deal was in escrow waiting for the D-2 liquor permit to go through and that they employed plaintiff’s lawyer to handle the transaction, all such facts tending to .show a complete and honest disclosure. These facts, of course, do mitigate in defendant’s favor. But when considering all of the evidence, including defendant’s records which disclose his acknowledged income far below his representations, this court comes to the conclusion that plaintiff has established, by clear and convincing evidence, the fact that the defendant was guilty of misrepresenting a material element in inducing the sale; that the plaintiff acted upon such misrepresentations in agreeing to buy the store, and when it was discovered that the defendant’s representations were untrue as to income, the store was tendered back in as good or bettér condition as to stock than it was when delivered to the plaintiff (not considering the nine days it was closed which would of necessity destroy the fresh vegetables) and that the plaintiff, upon the evidence is entitled to a decree as prayed for and the return of the money in escrow.

Decree for plaintiff is so ordered. Exceptions. Order see journal.

HURD, PJ, KOVACHY, J, concur.


author: By HORNBECK, J.:

text:
    GUITNER, Admx., Plaintiff-Appellant, v. McEOWEN. Defendant-Appellee, CITIZENS BANK COMPANY et, Defendants-Appellants.
    Ohio Appeals, Second District, Darke County.
    No. 714.
    Decided March 27, 1954.
    Spidel, Staley & Hole, Greenville, for Ollie Guitner, Admx. of the Estate of Harry Guitner, dec’d., plaintiff-appellant, and Ollie Guitner, individually, defendant-appellant.
    Goubeaux & Goubeaux, Greenville, for Sadie McEowen, defendant-appellee.
   OPINION

By HORNBECK, J.:

This is an appeal on questions of law and fact from a judgment of a three judge court dismissing plaintiff’s petition and finding for defendant, Sadie McEowen, on her cross-petition.

The action involved the ownership and right to proceeds of an account with the defendant bank in the name of “Harry Guitner or Sadie McEowen, or the survivor of either.” The account was opened in September, 1943, in the name of Harry Guitner only, and was so carried until March 9, 1953, when, under his instructions, the account was changed to a joint account with right of survivorship. At the time of the death of Harry Guitner there were five thousand five hundred dollars to the credit of the account.

The plaintiff claims the right to the proceeds of the account as the administratrix of Harry Guitner, who died on the 24th day of June, 1953, as the result of an injury self-inflicted. Defendant, Ollie Guitner, also asserted her prospective right to a share of the proceeds' as the widow of decedent.

The claim of the plaintiff, and the widow, is that the decedent was at the time of the creation of the joint account incompetent to effectuate the transaction, and that he was then subject to undue influence, neither of which claims is urged in this court. It is further claimed and insisted that decedent established the joint account with the right of survivorship for the purpose of defeating the widow from receiving her distributive share of decedent’s estate, and that he retained control of the account. The claim of defendant, McEowen, is that Harry Guitner made a gift inter vivos of the account in its entirety to Sadie McEowen and that, independent of such gift, as a joint owner of the account with right of survivorship, she had full right of joint ownership during the lifetime of Harry Guitner, and to full ownership thereof as survivor upon his death.

Harry Guitner and Ollie Guitner were married on June 10, 1910, and lived as husband and wife until his death on June '24, 1953. During the last several years of his life Mr. Guitner suffered from cancer and. characteristically, it became progressively worse, and there is no doubt that he must have known that death by reason of the disease was inevitable. The record discloses that there were normal marital relations between the husband and wife, and that she fulfilled all of her obligations as a dutiful consort. There is no claim that she owned any share of the money representative of the account, except as she might be entitled to an equitable interest by reason of her assistance to her husband in his business activities, whereby he acquired the ' money which went into the account.

The conditions under which the account was openéd, and the purposes which Mr. Guitner desired to accomplish, appear from three witnesses whose testimony is substantially as follows:

Thelma Lanich, assistant cashier of defendant bank, says that on the seventh day of March, 1953, Mr. Guitner called at the bank preparatory to a change in his individual account, and returned on the ninth with his book. She testified:

“He asked me if I would put his sister’s name on his savings account.

“I said, ‘Who is your sister?,’ and he said, ‘Sadie McEowen.’

“That was all that was said.”

• Thereupon, she took his book, put the name on it as directed, and stamped the further language, “or to the survivor of either.” The book with the endorsement was returned to Mr. Guitner, the transfer was made on the books of the bank in accordance with the change on the pass book. At the time of the transfer, Mr. Guitner made a withdrawal of four hundred dollars from the savings account and placed it to the credit of his checking account.

In what purports to be the By-Laws, Rules and Regulations of the Bank, appearing in the pass book, there is this language:

“In all cases in which the whole amount is withdrawn, the pass book must be given up to the bank.”
“This pass book will be depositor’s voucher or evidence of his or her deposits in the Bank.”
“When money is withdrawn, either in person or on written order of the depositor, this pass book must be presented to the Bank so that the amount of the withdrawal may be entered therein.”

There is no evidence that the rules and by laws carried in the pass book were ever formally adopted by the defendant bank, and it fairly appears that deposits could be withdrawn without the presentation of the book upon receipt of a depositor. Mr. Detrick, president of the bank, so testified.

Elmer H. McEowen, husband of defendant, Sadie McEowen, testified that on the 20th of June, 1953, at the request of Mr, Guitner, he took certain papers to a place where the Township Trustees were meeting, Mr. Guitner being a member of the Board, and on the same day the papers were returned to him. When the papers were returned, Mr. Guitner handed the savings account book to Mr. McEowen and said, “Give this to Sadie,” which was done, and that Mr. Guitner said nothing whatever other than that which we have stated. He further testified that on a prior occasion:

“He (Mr. Guitner) told me to tell Sadie that T have put some money in the Ansonia Bank so that if anything happens to me that she can draw it.”

and he is of the opinion that this conversation occurred some time in March.

Sadie McEowen testified that on Saturday before Mr Guitner died on the 24th of June, she had received the pass book from her husband, who informed her that Mr. Guitner had said, “Give this to Sadie.” That she had theretofore discussed the matter with Mr. Guitner, that he had sent her word:

“ ‘that he had put some money in my name in the Ansonia Bank for me to do as I seen fit and divide with my brothers and sisters; that he wanted his side of the house to have a little of what he had and he knowed if he did not fix it before he died that Ollie would not give us a dollar.’ That she, of course, was not to make the division until after he had died.”

That he also said, “You or I, ary one, can draw that money.”

The rights of the parties may be determined upon the evidence which we have heretofore stated. In our opinion, it establishes that Mr. Guitner created a joint and survivor-ship account with the defendant bank; that thereupon the persons named in the designation, namely, Harry Guitner and Sadie McEowen, were joint owners of that account and that the survivor was entitled to any proceeds remaining upon the death of the other. That such status was then created by the contract between the bank and Harry Guitner. In re Estate of Hatch, 154 Oh St 149. That it was for the benefit of another, Sadie McEowen. Rhorbacker Exr. v. The City Building Assn., et al., 138 Oh St 276. Decedent retained no right of revocation; indeed his act was irrevocable. Flanders v. Building and Loan Co., 45 Oh St 108; O’Brien v. O’Brien, 112 Oh St 202. The amount to the credit of the account at the time of the transfer had been deposited by Mr. Guitner, and his transfer to a joint account was a gift to Sadie McEowen of a joint ownership, and as it was an undenied benefit to the donee it will be presumed to be accepted by her. Rhorbacker, Exr. v. The City Building Assn., et al., supra. The establishment of the joint account having been completed, Sadie McEowen was thereby vested with the joint ownership, whether or not she had possession of the pass book. McElroy v. Albany Savings Bank, 8 App. Div. 46, 40 N. Y. S. 422, cited with approval in Cleveland Trust Co. v. Scoby, 114 Oh St 252. The president of defendant bank testified that it would pay from the account upon Mrs. McEowen’s order.

At the time of the transfer of the account, the wife of Harry Guitner was not in the status of his creditor, and he had full right to make the gift during his life time. Hayes v. Lindquist, 22 Oh Ap 58. The rights of Sadie McEowen in the account having been fixed during the life time of decedent, his expressed desire as to how she should divide the proceeds upon his death did not affect her interest therein. If the status of Sadie McEowen was that of a trustee, which seems to be her construction of her interest, she took legal title, and the beneficiaries equitable title, at the time that the account was created.

The status of a holder of a joint account with right of survivorship is no longer an open question in Ohio. Cleveland Trust Co. v. Scoby, supra. Oleff, Admr. v. Hodapp, Gdn„ 129 Oh St 432, in the first syllabus of which it is said:

“A joint and survivorship account entered into by and between two parties, as provided by §9648 GC, is a contract inter vivos, carrying a present, vested interest, and can in no wise be affected by the laws of descent and distribution.”

And in the first and third syllabi of Sage v. Flueck, 132 Oh St 377:

“(1) Where a joint bank account is, by the creator thereof, made ‘payable to either or the survivor,’ the right of survivorship vests in the joint depositors by virtue of contract.”
“(3) Upon death of the creator of a joint and survivorship bank account, the surviving joint depositors have a right to the balance remaining in the account to the exclusion of the personal representative of such decedent.”

We have examined the cases cited by counsel for appellants wherein it is held that a husband may not by a devise, still retaining title, dispose of his personal property with intent to bar his wife of her distributive share in his estate. Here the creator of the account retained only his joint interest during life, according to its terms. The evidence does not support the contention of the appellant that the creation of the account was an attempt to make testamentary disposition of the subject matter thereof.

We briefly consider some of the cases cited by appellant. In re Estate of Copeland, 74 Oh Ap 164. The money, the subject of the claimed gift, was in a lock box rented by the depositor, the key to which (although left with the bank) was never beyond access to and control of the depositor. No relationship of debtor and creditor was established between the bank and the depositor. In Union Properties, Inc. v. Trust Company, 152 Oh St 430, wherein it was held that the “realities of ownership” in an account joint in form may be shown, Judge Zimmerman points out that no question of survivorship was presented, but the right, intention, and attitude of the depositors during their joint lives to a subsisting account. In re Estate of Fulk, 136 Oh St 233, determined the intent of the depositors to be that each had the right of survivorship, although the formal terms of the deposit did not so provide. Hayes, Admx. v. Lindquist, 22 Oh Ap 58. The court found that the alleged transfer by the husband of the stock, subject of the controversy, was in fraud of his wife’s rights, and that he did not part with absolute dominion over the stock. The court held that the rule that the husband may dispose of his personal property during his life time without fraud on wife’s rights applies only to absolute transfers. Boles v. The Toledo Trust Company, Exr., et al., 144 Oh St 195. The husband attempted to bar his wife of distributive share which she would have enjoyed at his death, but he retained the right of disposition and control of the property up to the time of his death. The same situation obtained in Rose v. Rose, 34 Oh Ap 89.

Although we determine this case de novo, we have examined the findings of fact in the trial court, and are in accord therewith. We are not satisfied that the record supports the conclusion that there was a gift inter vivos of decedent’s share of the account to defendant, McEowen. Decedent’s statement to Mrs. McEowen that “ary one can draw that money” disclosed his full appreciation of the right of both parties to the account. At all times after the account was opened defendant, McEowen, had an equal right with decedent to the possession of the pass book. Its surrender with the direction only “Give this to Sadie,” without more, did not clearly disclose his intention to then make an outright gift of his share. Polley v. Hicks, 58 Oh St 218. Nor was there anything that he had theretofore said respecting the account or his purpose in setting up joint ownership sufficient to establish a present intent to divest himself of all right in the account. However, the delivery of the pass book was further evidence, if any were needed, that decedent did not retain any control or interest in the account at variance with the terms under which it was opened. A gift inter vivos was not necessary to defendant, McEowen’s full ownership as survivor of decedent of the proceeds of the joint account.

The judgment here will be the same as in the Common Pleas Court.

WISEMAN, PJ, MILLER, J, concur.