author: By MILLS, J.

text:
    KIESTER, III, Plaintiff, v. KIESTER, Admrx., et, Defendants.
    Common Pleas Court, Montgomery County.
    No. 111245.
    Decided June 12, 1957.

      Carson & Carson, for plaintiff.
   OPINION

By MILLS, J.

This cause came on to be heard upon the petition for the construction of the last will and testament and codicil of Benjamin F. Kiester, Sr., deceased, a former resident of the City of Dayton, County of Montgomery and State of Ohio, who died August 21st, 1922, leaving surviving him his widow, Lula Kiester, and one son, Benjamin Franklin Kieste hereinafter referred to as Benjamin F. Kiester, II, who was born on < about April 30th, 1900, and was twenty two years of age at the time ( the death of his father, the testator. At the time of his father’s deat Benjamin F. Kiester, II, was married and living with his wife, Geraldir Conklin Kiester, in the home of his father and mother at 402 Sale) Avenue, Dayton, Ohio.

The following is a copy of the petition filed herein:

“Now comes the plaintiff and represents that on the 21st day < August, 1922, one B. F. Kiester died leaving a will and codicil which wei duly admitted to probate by the Probate Court of Montgomery Count; Ohio, on the 29th day of August 1922; letters testamentary were issue to Benjamin F. Kiester, Jr. on the 15th day of September, 1922; ths Benjamin F. Kiester, Jr. died on the 19th day of August, 1955, and ths letters of administration de bonis non with will annexed wqre issue to Lula Kiester under the reopened estate of B. F. Kiester, deceased, o the 30th day of April, 1956, by said Probate Court, and administrate proceedings were had under the original estate proceedings of the sai B. F. Kiester, deceased, and that administration proceedings are pendin under said reopened estate, all of which will more fully appear froi an examination of the records of the Clerk of Probate Court, Mont gomery County, Ohio.
“The plaintiff is interested in said estate by reason of being a grand son, and one of the lineal descendants of B. F. Kiester, deceased;
“That a copy of the last will and testament and codicil, marke ‘Exhibit A’ is attached hereto and made a part hereof;
“That on the 1st day of May, 1956, the plaintiff requested said ad ministratrix d. b. n., w. w. a. in writing to bring this suit, and more tha: thirty days have elapsed since said request, but said administratri d. b. n„ w. w. a. has failed to bring such suit;
“That the following defendant is a legatee and devisee named in sai last will and testament;
“Lula F. Kiester, 402 Salem Avenue, Dayton 7, Ohio;
“That the following defendants claim to have an interest in hi estate:
“Lula Kiester, 402 Salem Avenue, Dayton 7, Ohio; and Carolyn Jea) Kutz, 21311 Lopez Street, Woodland Hills, California.
“Plaintiff says that Benjamin F. Kiester, Jr. died on August li 1955, leaving two children as his bodily issue, both adults, namely Benjamin F. Kiester, III, the plaintiff herein, and his sister, Caroly) Jean Kutz, one of the defendants herein, and said two children bein the grandchildren and lineal heirs of B. F. Kiester, deceased; and hi mother, Lula Kiester, being the surviving spouse of B. F. Kiester, de ceased, and the grandmother of said Benjamin F. Kiester, III am Carolyn Jean Kutz.
“The plaintiff is in doubt as to the true construction of the said las will and testament and codicil of B. F. Kiester, deceased, in the follow ing particulars:
“1. What type of estate or interest did the said Lula Kiester receiv in the real estate located at 402 Salem Avenue in the City of Dayton fchio, as set forth in Item I of the codicil to the last will and testament Hf B. F. Kiester, Sr.?
I “2. Would the provisions of Item II, paragraph 2, of the last will find testament of B. F. Kiester, Sr. be applicable and extend to the Iroperty located at 402 Salem Avenue, Dayton, Ohio, as described in Item I of the codicil to the last will and testament of B. F. Kiester, Sr.? | “3. What interests or estate did Lula Kiester receive from B. F.
Kiester, Sr. at his death, by virtue of the last' will and testament and lodicil thereto of said B. F. Kiester, Sr., other than in the premises located at 402 Salem Avenue, Dayton, Ohio, she not having remarried? I “4. What interests or estate other than in the premises located at 102 Salem Avenue, Dayton, Ohio, did Lula Kiester receive from B. F. Kiester, Sr., by virtue of the last will and testament and codicil of said 13. F. Kiester, Sr., since she survived said B. F. Kiester, Sr.’s only son, benjamin F. Kiester, Jr., he having died in 1955, and she not having remarried?
I “5. What interest did Benjamin F. Kiester, Jr., only son of the Itestator, B. F. Kiester, Sr., receive in the real estate and personal property owned by B. F. Kiester, Sr., at the time of said B. F. Kiester, Sr.’s ¡death, by virtue of the provisions of Item III and Item V of the last will and testament of said testator, and Item I and Item II of the codicil of said testator?
“6. Since Lula Kiester has survived her only son, who died August 19th, 1955, and since Lula Kiester has never remarried, and since Benjamin F. Kiester III and Carolyn Jean Kutz have also survived their father, Benjamin F. Kiester, Jr., and are the only issue of his body, what interest does Benjamin F. Kiester III and Carolyn Jean Kutz receive in the property at 402 Salem Avenue, Dayton, Ohio, all as provided in the last will and testament of B. F. Kiester, Sr., together with the codicil?
“7. Since Lula Kiester has survived her only son, who died August 19th, 1955, and since Lula Kiester has never remarried, and since Benjamin F. Kiester III and Carolyn Jean Kutz has also survived their father, Benjamin F. Kiester, Jr., and are the only issue of his body, what interest or estate does Benjamin F. Kiester III and Carolyn Jean Kutz receive in the property and estate of the testator, other than the property located at 402 Salem Avenue, all as provided in the last will and testament of B. F. Kiester, Sr., together with the codicil?
“8. What is the true meaning and intention of the testator, B. F. Kiester, Sr., as determined from reading together the terms of the last will and testament of testator, and the terms of the codicil of the testator?
“Plaintiff therefore prays the judgment and direction of the court in regard to the true intention and meaning of the clauses in the will of said testator, B. F. Kiester, Sr., deceased, and of the codicil thereto made by said testator, B. F. Kiester, Sr., deceased.”

To this petition Lula Kiester, the widow, now ninety two years of age, individually, and as administratrix de bonis non with the will annexed of the Estate of Benjamin F. Kiester, Sr., deceased, and Carolyn Jean Kutz, the granddaughter of Lula Kiester and Benjamin F. Kiester, Sr., the testator, filed the following waiver of summons and answer;

“We, the undersigned parties defendant, to the petition in the abovi indicated action, do each of us hereby waive the issuing and service o summons and voluntarily enter our appearance as such defendants anc consent to plaintiff’s petition for construction of said will.”

Therefore, it appears that all necessary parties to this action havs been served with summons or have waived service of summons anc filed their answer and consent to the petition for the construction of thcS last will and testament of Benjamin F. Kiester, Sr., together with theH codicil. I

It appears from the testimony that Benjamin F. Kiester, II, the onljl son and issue of Benjamin F. Kiester, Sr., the testator, died on tha| 19th day of August, 1955, leaving surviving him his daughter, Carolyr Jean Kutz, born October 4th, 1928, and his son, the plaintiff herein Benjamín F. Kiester, III, born November 18, 1921, both of whom now live in California. It therefore appears that when the testator executed the codicil to his last will and testament, that Benjamin F. Kiester, III, plaintiff in this case, had been born to Benjamin F. Kiester, II.

It appears that Benjamin F- Kiester, II, who died on August 19, 1955, was divorced from his first wife and that he had married said first wife, Geraldine Conklin Kiester, prior to his father’s death.

It further appears that said son, Benjamin F. Kiester, II, divorced said first wife, Geraldine Conklin Kiester, some time after 1928, and after his father’s death. It also appears that said son, Benjamin F. Kiester, II, remarried several more times subsequent to his first marriage, but never had any children or issue by any of the subsequent marriages up to the time of his death.

It further appears that the only children or issue of the son, Benjamin F. Kiester, II, were born from the union of his first marriage with Geraldine Conklin Kiester, and said only children or issue are Benjamin F. Kiester, III, the plaintiff herein, and his sister, Carolyn Jean Kutz, one of the defendants herein, and that both of said children were born to said son, Benjamin F. Kiester, II, and his first wife, Geraldine Conklin Kiester.

The last will and testament and codicil of Benjamin F. Kiester, Sr., are annexed to the petition and introduced into evidence, and do read as follows:

“Last Will and Testament
“I, B. F. Kiester, of Dayton, Ohio, being of sound mind and memory, do make, publish and declare this my last will and testament, hereby revoking any and all former wills by me at any time made.
“Item I: It is my will that after my death all my just debts be paid out of my estate.
“Item II: I hereby will, devise and bequeath to my beloved wife, Lula Kiester, the undivided one-half of all my real estate that I may own at the time of my decease so long as she remains my widow. And also give and bequeath to my said wife, one-half of all the personal property that may be left of my estate after the payment of my just debts and the legacies hereinafter mentioned in this will, so long as she remains my widow.
“If by reason of sickness, misfortune or any emergency that may irise, said provision for my said wife shall be insufficient to keep and naintain her in the station and manner that she lived during my lifeline, then and in that event, it is my will that she be and she is hereby authorized to use such part or parts of the principal of the estate so levised to her as may be necessary for her keep and maintenance in the manner herein provided.
“Item III: I give, devise and bequeatth to my son, Benjamin F. Kiester, Jr., the undivided one-half of all my real estate that I may own at the time of my death, and also one-half of all the personal property that may be left after the payment of my just debts and after the payment of the legacies hereinafter mentioned in this my will. And after the death of my said wife, it is my will that my said son shall have the whole of my estate, both real and personal, absolutely.
“In the event of the death of my son, Benjamin F. Kiester, Jr., during the widowhood of my said wife, Lula Kiester, then, and in that event, it is my will that my said wife shall have and enjoy the proceeds of one-half of my estate devised to my said son by my said last will and testament so long as she remains my widow.
“Item IV: In the event of the marriage of my said wife, then it is my will that she shall have of my estate such part thereof as would go to her under and by virtue of the provisions of the laws of the State of Ohio, and that the rest and residue of my estate then pass and go to my said son, Benjamin F. Kiester, Jr.
“Item V: If my said son die, leaving no issue of his body, and before the death of my said widow, then upon the death or marriage of my said widow, it is my will that two thirds (2/3) of my estate, real and personal, shall go and pass to my brothers and sister, Susan E. Norris, or their legal representatives, share and share alike, and one-third (1/3) thereof shall go and pass to the three (3) sisters of my said wife, if they be living, viz: Alice Heikes, Jeanette Heikes and Nellie B. Thorne, share and share alike.
“Item VI: It is my will and I hereby devise and bequeath to my two nieces, Edith Mumma and Forest Kuhns, daughters of my brother, William H. Kiester, each the sum of One Hundred Dollars ($100.00).
“Item VII: I hereby devise and bequeath to Alice Heikes, sister of my said wife, the sum of One Hundred Dollars ($100.00); and to Jeanette Heikes, sister of my said wife, the sum of One Hundred Dollars ($100.00); and to Nellie B. Thorne, sister of my said wife, the sum of One Hundred Dollars ($100.00); and to my nephew and niece, W. L. Norris and Grace Renneburg, son and daughter of my sister, Susan E. Norris, each the sum of One Hundred Dollars ($100.00).
“Item VIII: It is further my will that each and all of said legacies above provided for to my nieces and to the sisters of my said wife, and to my nephew, W. L. Norris, shall be paid only out of the personal property that may be left of my estate after the payment of all my just debts and the costs of administration, and that no part of said legacies shall be paid out of my real estate, and in the event that there is not sufficient personal property of my estate after the payment of my just debts and the costs of administration, then and in that event the personal property so left shall be applied in payment of the special legacies, pro rata.
“Item IX: I hereby appoint my said wife, Lula Kiester, to be the testamentary guardian of my said son, Benjamin F. Kiester, Jr., during his minority.
“Item X: If, at the time of my death, my said son shall not yet be twenty one (21) years of age, then it is my will that my brother, John Kiester, and William T. Thorne, be appointed as executors of this my last will and testament, without bond or appraisement; but in the event that my said son is twenty one (21) years of age, then it is my will that my said son, Benjamin F. Kiester, Jr., shall be the executor of this my last will and testament instead of John Kiester and William T. Thorne, also to act without bond or appraisement.
“In Witness Whereof, I have hereunto subscribed my name and affixed my seal this 20th day of November, in the year of our Lord one thousand nine hundred and nineteen.
/s/ B. F. Kiester
“Signed, published and declared by the above named B. F. Kiester as and for his last will and testament, in the presence of us, who in his presence, at his request, and in the presence of each other have hereunto subscribed our names as witnesses.
/s/ Allen C. McDonald
/s/ Julia Anna Keever”
CODICIL TO LAST WILL AND TESTAMENT
“I, B. F. Kiester, whose full name is Benjamin F. Kiester, of Dayton, Ohio, being of sound and disposing mind and memory, do make, publish and declare this codicil to my last will and testament executed by me under date of November 20th, 1919.
“Item I: I give, devise and bequeath to my beloved wife, Lula Kiester, the real estate where we now reside, located at No. 402 Salem Avenue, in the City of Dayton, Ohio, and being ten feet taken by parallel lines off of the north-west side of lot numbered twenty-one thousand six hundred and twenty (21,620) and forty three feet or thereabouts taken by parallel lines off of the southeast side of lot numbered twenty one thousand six hundred and nineteen (21,619) both of the consecutive numbers of lots on the revised plat of the City of Dayton, Ohio, to be used and enjoyed by my said wife during the period of her natural life. It is my intention that this provision shall embrace the property and premises where we live and that my said wife shall have the use and enjoyment thereof and income therefrom while she shall live. Item II of my said last will and testament is hereby changed and modified in accordance with this provision.
“Item II: Upon the death of my said wife said tract of real estate embraced in Item I hereof shall pass to my son, Benjamin F. Kiester, Jr., or in the event of his previous death, to the issue of his body, or in the event he shall die without such issue then to my brother and sister or their legal representatives, as I have set out and provided for in Items III, IV and V of said last will and testament; in other words, said real estate so given to my said wife during her lifetime shall, upon her death, ie subject to the same provisions of said original last Will and testament he same as though the life estate had not been created.
“Item III: Said last will and testament is, in all other respects, íereby ratified and confirmed.
“In witness whereof I have hereunto subscribed my name this 4th lay of January, in the year of our Lord one thousand nine hundred and ;wenty two.
B. F. Kiester
“Signed, published and declared by the above-named B. F. Kiester as and for a codicil to his last will and testament, in the presence of us, fvho in his presence, at his request, and in the presence of each other have hereunto subscribed our names as witnesses.
/s/ Julia Ann Keever
/s./ Allen C. McDonald”

The court finds from the testimony that the testator left four parcels of real estate in the City of Dayton, Ohio, a farm in Darke County, Ohio, near Greenville, and about one thousand acres of land in Saskatchewan Province, Canada.

The court finds that Benjamin F. Kiester, II, deceased, was twenty two years of age at the time of the death of his father, and was appointed executor as provided in the will; that the estate was administered in the Probate Court of Montgomery County, Ohio, and after the death of Benjamin F. Kiester, II, on August 19, 1955, letters of administration de bonis non, with the will annexed, were issued to Lula Kiester, the widow of the testator, under the reopened estate of Benjamin F. Kiester, deceased, on April 30, 1956, by the Probate Court of Montgomery County, Ohio, and that administration proceedings are pending under said reopened estate of testator, all of which will be shown more fully from an examination of the records of the Clerk of Probate Court of Montgomery County, Ohio.

The court further finds that Lula Kiester is still the widow of Benjamin F. Kiester, Sr., the testator, is now living, that she is ninety two years of age, and that she has never remarried since the death of " testator.

The court further finds from the testimony that Benjamin F. Kiester, II, died August 19th, 1955, leaving two children as the only issue of his body, being Benjamin F. Kiester, III, the plaintiff herein, and Carolyn Jean Kutz, one of the defendants herein; that said two children are the only grandchildren and lineal heirs of Benjamin F. Kiester, Sr., the testator. That Lula Kiester, being the surviving spouse of Benjamin F. Kiester, Sr., deceased, is the grandmother of Benjamin F. Kiester, III, and Carolyn Jean Kutz.

Plaintiff in his petition says that he is in doubt as to the true construction of the last will and testament and codicil of Benjamin F. Kiester, Sr., deceased, in the following particulars:

Question 1—

“What type of estate or interest did the said Lula Kiester receive in the real estate located at 402 Salem Avenue in the City of Dayton, Ohio, as set forth in Item I of the codicil to the last will and testament of B. F. Kiester, Sr.?”

Answer—

The court finds that Lula Kiester takes a conventional or base life estate in the whole of the property at 402 Salem Avenue, described in Item I of the codicil of testator’s will.

The language of Item I of the codicil is absolutely clear that testator’s widow is to receive a life estate only, without earlier termination, and without additional attributes or powers. This language is so rudimentary that further elaboration by this court seems unnecessary.

The ninth line and thereafter of Item I of the codicil recites — “to be used and enjoyed by my said wife during the period of her natural life”; again at line twelve of Item I of the codicil — “that my said wife shall have the use and enjoyment thereof and income therefrom while she shall live.” The last two lines of Item I of the codicil — “Item II of my said last will and testament is hereby changed and modified in accordance with this provision.” Again in the last two lines of Item II of the codicil — “the same as though the life estate had not been created.”

None of this language creates a power to sell, whereas the language of Item II of the will itself does create a power to sell. The codicil simply creates an unequivocal life estate.

See: Restatement of the Law, Property, Volume I, Section 18; Swartz v. Gehring, 7 O. C. C. 426; Schwan, Executor v. Meinert, 56 Oh Ap 336; Nimmons v. Westfall, 33 Oh St 213; Holt v. Miller, 26 Abs 395; 11 O. O. 211, and numerous other authority.

The language in this codicil is so completely contrary to the language contained in Item II of the will, and again in the last five lines of Item III of the will, both together cannot stand as to the 402 Salem Avenue property, and therefore, the language in the codicil of the will, being clear and certain, must control.

See: Foye et al Executors & Trustees v. Foye et al, 35 Oh Ap 283.

Question 2—

“Would the provisions of Item II, paragraph 2 of the last will and testament of B. F. Kiester, Sr., be applicable and extend to the property located at 402 Salem Avenue, Dayton, Ohio, as described in Item I of the codicil to the last will and testament of B. F. Kiester, Sr.?”

Answer—

The answer is no. The reasons for this answer have already been -partially expressed in the answer to question one in that there is no language contained in the codicil referring to, creating, adopting or in any way implying, that the provisions of paragraph two of Item II of the will shall in any way apply to the property described in the codicil.

For cases exhibiting language affixing or attaching additional powers or incidents upon a life estate, see:

Wetzel v. Besecker, 77 Oh Ap 235; 161 A. L. R. 630n, 676n; Fetter v. Rettig, 98 Oh St 428; Widows’ Home v. Lippardt, 70 Oh St 261.

Question 3—

“What interests or estate did Lula Kiester receive from B. F. Kiester, Sr., at his death by virtue of the last will and testament and codicil thereto of said B. F. Kiester, Sr., other than in the premises located at 402 Salem Avenue, Dayton, Ohio, she not having remarried?”

Question 4—

“What interests or estate, other than in the premises located at 402 Salem Avenue, Dayton, Ohio, did Lula Kiester receive from B. F. Kiester, Sr., by virtue of the last will and testament and codicil of said B. F. Kiester, Sr., since she survived said B. F. Kiester, Sr.’s only son, Benjamin F. Kiester, Jr., he having died in 1955, and she not having remarried?”

Answer—

The court chooses to answer questions three and four together. It is the opinion of the court that Lula Kiester has an undivided one-half interest for life or to be earlier terminated in the event of her remarriage, in all of the property of the testator other than the 402 Salem Avenue property, and upon the death of her son, Benjamin F. Kiester, II, prior to her death or remarriage, she then succeeded to the other undivided one-half interest, and from that time forward, she has a full or whole interest in all of the property other than the 402 Salem Avenue property, for her life, or to be earlier terminated by her remarriage. In addition to this determinable life estate, the widow, Lula Kiester, has the right or power to sell the undivided one-half of the principal of the estate initially devised to her if the need arises, in accordance with the conditions expressed in the language of the second paragraph of Item II of the will. This power or right will cease and terminate upon her death or earlier remarriage. Up until the time of her son’s death, or her remarriage, she having only the right to the use, income or avails of the initial undivided one-half interest, and she could until such time, sell only an undivided one-half interest in the underlying principal of the estate thereof based on the conditions of need expressed in the second paragraph of Item II of the will.

After the event of her son’s death and prior to her death or remarriage, the contingency expressed in the last five lines of Item III of the will having occurred, she was then entitled to receive the income of this undivided one-half interest in the real estate other than the 402 Salem Avenue property, without the right to sell the principal in said undivided one-half interest, since the language in the last five lines of Item III of the will did not mention or contain any power to sell this undivided one-half she took in the event of her son’s death, prior to her death or remarriage.

The court sees nothing inconsistent in her inability to sell the entire underlying principal in the property of the testator, other than the 402 Salem Avenue property, either before or after her son’s death, and prior to her death or remarriage, due to the fact the testator was a man of considerable means and left five parcels of real estate other than the 402 Salem Avenue property, the income from which, and the power of sale of an undivided one-half interest in said other realty being amply sufficient to meet her needs. Such limitation restricts her from alienating the other undivided one-half interest, and from destroying the full remainder estate, thus giving consistency to the testator’s true intention.

The words “In the event of the death of my son, Benjamin F. Kiester, Jr., during the widowhood of my said wife, Lula Kiester, then, and in that event, it is my will that my said wife shall have and enjoy the proceeds of one-half of my estate devised to my said son by my said last will and testament so long as she remains my widow,” contained in the last five lines of Item III of the will, clearly import this executory determinable life estate in the widow, in the remaining undivided one-half interest.

For authority construing the word “proceeds” to mean income or avails i. e. life estate, see:

Browning v. Ashbrook’s, Exr., 175 Ky. 755; 195 S. W. 105, 108.

“Where testator’s will gave his wife all the ‘proceeds’ of his estate as long as she remained his widow, the term ‘proceeds’ meant income.”

Gorin Sav. Bank v. Early, Mo., 260 S. W. 480, 483.

“The word ‘proceeds’ when applied to the income to be derived from real estate embraces the idea of issues, rents, profits, or produce.”

Appeal of Robert, 92 P. A., 407, 419.

“ ‘Proceeds’ as used in a will devising property to trustees, and directing the trustees to distribute the proceeds thereof in a certain designated manner, is to be construed to mean ‘income.’ ”

Appeal of Thomson, 89 Pa. 36, 46; In re Thomson’s Estate, Pa., 12 Phila. 313, 315.

“ ‘Proceeds,’ as used in á will bequeathing certain property to trustees, the income to be devoted to certain purposes, with power to sell any of the property and reinvest the proceeds and also directing that so much of the proceeds of the property should be paid to a certain person as she may deem necessary for the maintenance of herself and another, should be construed to mean the income which had been devoted to the purposes of the will.”

Gibbs v. Barkley, Tex. 242 S. W. 462, 465;

“Under a deed conveying a life estate to grantor’s daughter with remainder to her children, a concluding clause appointing the daughter’s husband trustee to use the property and its ‘proceeds’ for the sole use and benefit of his wife, and the children did not vest title in him as trustee, no words of conveyance being contained therein, and the word ‘proceeds,’ which is synonymous with ‘product,’ ‘yield,’ ‘income,’ ‘receipts,’ and ‘return,’ being employed in the sense of income from the property, which the trustee had power to manage and control, rather than to confer a power of sale.”

For authority as to the language creating a determinable life estate, see:

Fetter v. Rettig, 98 Oh St 428; Coyle v. Underwood, 55 Abs 257; 41 O. O. 465; Huston et al v. Craighead et al, 23 Oh St 198; Wetzel v. Besecker, 77 Oh Ap 235; 32 O. O. 522; Fletcher v. Rynd, 18 Oh Ap 136.

9 Ohio State Law Journal 373, under “Wills-Construction of Ambiguous Devisee-Fee Simple or Life Estate” reads:

“Testatrix was beneficiary of her sister’s will, which read in part: '. . . the balance of my estate both real and personal of every description be given to my sister, — to do with and use as she sees best fit to do. And after her death, what is left if any be given to my nephew’s children.’ Plaintiffs are the nephew’s children and claim as remaindermen under the clause; defendant is testatrix’ husband, executor and residuary de-visee. Plaintiffs contend that the first taker (the testatrix) took only a life estate with a power of disposition under the clause under construction. Defendant contends first taker took a fee and that plaintiffs took nothing, the attempted limitation over being void. Held, first taker received a life estate with a power to consume for her benefit. DeWolf v. Frazier, 80 Oh Ap 150, 73 N. E. 2nd 212 (1947).
“The case is in accord with the Ohio line of authority in construing an ambiguous devise with an accompanying power as a devise of a life estate. Baxter v. Bowyer, 19 Oh St 490 (1866); Johnson v. Johnson, 51 Oh St 446, 38 N. E. 61 (1894); Robbins v. Smith, 72 Oh St 1, 73 N. E. 1051 (1905); Fetter v. Rettig, 98 Oh St 428, 121 N. E. 696 (1918); Raymund v. Williams, 100 Oh St 544, 127 N. E. 925 (1919); Tax Commission v. Oswald, 109 Oh St 36, 144 N. E. 678 (1923); Murphy v. Widows’ Home and Asylum, 21 Oh Ap 174, 151 N. E. 783 (1925).
“Baxter v. Bowyer, supra, is a leading case for the proposition that a devise in general terms, which by itself would be sufficient to pass a fee, vests only a life estate where a gift over of a remainder follows the primary devise. At the time the Baxter case was decided, the leading cases in the field held, under similar fact situations, that the devise was of a fee, and that the attempted limitation over was void. Jackson, ex dem. Brewster v. Bull, 10 Johnson 19 (N. Y. 1813); Jackson, ex dem. Livingston v. Robins, 16 Johnson 537 (N. Y. 1819). The court in the Baxter case justified their decision on a slight distinction between the words of the grant of the remainder in the Ohio situation and those of the instruments under construction in New York. The court stated that the words ‘all the property remaining’ in the Eaxter will imported considerably less control of the property by the first taker than did the words ‘such part of the estate as . . . (the devisee) . . . chose to leave’ in the two New York cases, and therefore held that the Baxter will conveyed only a life estate to the first beneficiary. This fine distinction has apparently never been made by courts in other states and has not been made by the courts of Ohio in subsequent cases, although the courts have uniformly reached the same result as did the court in the Baxter case.
“Later Ohio cases, in determining the nature of the estate devised have relied on several intrinsic factors. If the words of the devise state specifically ‘for life,’ there is, or course, no problem. If the devise is in general terms, the presence and nature of any power of disposition of the subject matter is significant, but not controlling. Where the estate given is not accompanied by any power of disposition, it is generally held that the devise is one of a fee simple and that any attempted limitation over is void. Steuer v. Steuer, 8 O. C. O. (N. S.) 71, 28 O. C. C. 145 (1905); Trumbull v. Stentz, 30 Oh Ap 34, 164 N. E. 57 (1929); Krumm v. Cuneo, 71 Ob Ap 521, 47 N. E. 2d 1001 (1942). Also, where the estate given is accompanied by an unlimited and unrestricted power of absolute disposition of the subject matter of the devise, it is generally held that the devise is one of a fee simple, and that any attempted limitation over is void. Wells v. Brown, 167 C. C. A. 180, 255 Fed. 852 (1919); Eubank v. Smiley, 130 Ind. 393, 29 N. E. 919 (1892); Kelley v. Meins, 135 Mass. 231 (1883); Helmer v. Shoemaker, 22 Wend. 137 (N. Y. 1879). In only one instance have the courts of Ohio construed the accompanying power as being unlimited and unrestricted and in that case the estate had been conveyed by the first taker in her lifetime, Widows’ Home v. Lippardt, 70 Oh St 261, 71 N. E. 770 (1904). Where the power of disposition in the first taker is limited as to its exercise — e. g., a power to dispose of in any manner she choose except by will — the devise is construed as one of a life estate only. Tuthill v. Davis, 121 App. Div. 290, 105 N. Y. Supp. 672 (2d Dep’t 1907); Johnson v. Johnson, supra; Tax Commission v. Oswald, supra; Murphy v. Widows’ Home and Asylum, supra.
“The Johnson case, supra, exemplifies the reluctance of the Ohio courts to invalidate a remainder over in the face of a power of disposition in the first taker. In this case, the power was described in the will as ‘full power to bargain, sell, convey, exchange or dispose of as she may think proper.’ The court held that the devisee was limited as to the exercise of the power to the consumption of the property during her lifetime. The court cited Baxter v. Bowyer but made no mention of the distinction in wording discussed earlier. Since the Johnson case, the courts have tended to infer from the presence of any power that the intention of the testator was to grant a limited power of consumption during the lifetime of the first taker, and thus have validated otherwise meaningless gifts over to successive remaindermen.”

For authority that the language in the last five lines of Item III of the will creates a concurrent life estate and an executory life estate in the widow, see Restatement of the Law, Property, Vol. 1, Sec. 114-115; Smith v. Block. 29 Oh St 488; Clyde Holt et al v. Howard Miller et al, 133 Oh St 418; 11 O. O. 211.

Question 5—

“What interest did Benjamin F. Kiester, Jr., only son of the testator, B. F. Kiester, Sr., receive in the real estate and personal property owned by B. F. Kiester, Sr., at the time of B. F. Kiester, Sr.’s death, by virtue of the provisions of Item III and Item V of the last will and testament of said testator, and Item I and Item II of the codicil of said testator?”

Answer—

The court chooses to answer this in two parts — first as applying to the property at 402 Salem Avenue in the codicil, and second, as applying to the property other than at 402 Salem Avenue.

(1) As to the 402 Salem Avenue property: The court finds the son of testator, Benjamin F. Kiester, II, took only a contingent remainder in said property, the contingency being clearly expressed in the language of Item II of the codicil, which recites as follows:

“Item II: Upon the death of my said wife said tract of real estate embraced in Item I hereof shall pass to my son, Benjamin F. Kiester, Jr., or, in the event of his previous death, to the issue of his body, or in the event he shall die without such issue then to my brothers and sister or their legal representatives, as I have set out and provided for in Items IIT, IV and V of said last will and testament; in other words, said real estate so given to my said wife during her lifetime shall, upon her death, be subject to the same provisions of said original last will and testament the same as though the life estate had not been created.”

Item II of the codicil clearly required the son to survive his mother, Lula Kiester, in order to take, and he 'did not survive her. I» the event he had survived his mother than his remainder interest would have become absolute, notwithstanding the seeming unqualified condition annexed to the one alternative contingency expressed in the part of the language — “or in the event he shall die without such issue then to— This portion of Item II of the codicil was not intended to create an indefinite time for the failure of issue of the son or beyond his mother’s death, but meant only if he predeceased his mother without issue, then certain collateral heirs of testator would take.

This meaning is supplied by a reference in Item II of the codicil to Items III, IV and V of the will for further clarification as to testator’s true intention, and these items of the will itself clearly so provide. The language of Item II of the codicil is equally clear and certain that the issue of testator’s son would take absolutely and without qualification in the event the son of testator died prior to his mother’s death leaving issue surviving at that time. The issue would take direct from the testator and by purchase at the time the son did actually predecease his mother. Since the son of testator, Benjamin F. Kiester, Jr„ or II, has predeceased his mother his interest has completely failed and has never become absolute in the 402 Salem Avenue property of the testator.

See: Sinton v. Boyd, 19 Oh St 30, Syl 2; LaRache v. LaRoche, 10 Oh Ap 242; Manley, Appellant v. Crawford, 94 Oh Ap 500; 52 O. O. 276.

It might be stated that the son of testator had a remainder subject to a condition precedent, or that he had a vested defeasible estate.

For interesting cases discussing terminology to be applied to these various conditions of limitations over, see:

First National Bank v. Tenney, 165 Oh St 513; McCarthy v. Hansel, — Oh Ap 425.

No matter how it is stated, the result in the present case is the same. The son of Benjamin F. Kiester, II, had to survive the mother, Lula Kiester, to take any interest in the 402 Salem Avenue property, and he did not survive her.

(2) As to property other than the 402 Salem Avenue property: This class of property creates a slightly more difficult problem, but nevertheless can be handled by applying existing rules of construction to all four corners of the will and codicil. It is the opinion of the court that under Item III of the will, Benjamin F. Kiester, II, took only a life estate in an undivided one-half interest in all of the property of the testator, other than the 402 Salem Avenue property.

See, Restatement of the Law, Property, Volume 1, Section 108, and illustrations, particularly sub-section b.

He further held a contingent remainder to become absolute in the whole of said class of property, including the undivided one-half part thereof, subject to his mother’s determinable life estate and power to sell, to become absolute on two conditions only, that the son either survive the death, or survive the remarriage, of his mother.

The language of Item III of the will which gave him a life estate in an undivided one-half interest, was almost identical with the language contained in Item II of the will, which gave an undivided one-half interest for life to his mother, except the latter language contained a

condition “so long as she remains my widow,” not attached to the language in said Item III of the will. In neither clause was “life estate” specifically stated or mentioned. The court finds the language in Item III of the will creates a life estate, only, in the son as to an undivided one-half interest if he does not survive either the death or remarriage of his mother. The second sentence and the last five lines of Item III of the will serve to explain and qualify the son’s estate:

“And after the death of my said wife it is my will that my said son shall have the whole of my estate, both real and personal absolutely.”

“In the event of the death of my son, B. P. Kiester, Jr., during the widowhood of my said wife, Lula Kiester, then, and in that event is in my will that my said wife shall have and enjoy the proceeds of one-half of my estate devised to my said son, etc.”

“Proceeds of one-half of my estate” again denoting avails, income, use thereof (life estate) — “devised to my son.” See definition of “Proceeds” supra and citations thereunder.

The life estate as to an undivided one-half in the son is clearly implied and further substantiated by the language of Items IV and V of the will, which items including Item III of the will when read together and with Item II of the codicil, absolutely denote and define the type of estate devised to the son as constitutional only, the limitation being that if the son die prior to the death or remarriage of his mother his entire interest at his death, shall cease. But, if he survived either event, his estate would then ripen into a fee in all of this class of property and merge out his life estate in the undivided one-half interest.

The court does not find the second sentence of Item III of the will sets forth language contrary to this construction, nor does this sentence create a vested remainder estate in the son:

See: Stophlet, Exe. v. Stophlet et al, 22 Oh Ap 327; Manley, Appellant v. Crawford, 94 Oh Ap 500; 52 O. O. 276; Restatement of the Law, Property, Volume 1, Section 108; Moeller v. Poland, 80 Oh St 418.

The Manley case considers almost the same identical language as in the second sentence of Item III of the will before this court. The second sentence of Item III of the will recited “And after the death of my said wife, it is my will my said son shall have the whole of my estate, both real and personal, absolutely.” The court in the Manley case found such language created a conditional estate and the recipients were not to receive the estate until after the death of the life tenant (thus a contingent remainder), especially in view of other limitative language in the will. The second sentence of Item III in this case, when read together with the other language of the four corners of the will and codicil, clearly harmonizes the intent of the testator to be that the son, Benjamin P. Kiester, Jr., shall not take the remainder estate unless he survives the death or remarriage of his mother. Item IV of the will supplies the condition that the son gets the “rest and residue” if the widow does remarry, if he survives the remarriage.

See: Sinton v. Boyd, 19 Oh St 30; Shaw & Campbell v. Hoard, 18 Oh St 227.

The will and codicil clearly show the intention of the testator to be that the son had a life estate in an undivided one-half interest and a contingent remainder in the whole, based on the double condition that he must survive the remarriage or at the latest survive the death of his mother if she did not remarry, in order to take.

Although the will itself was silent as to who would take if the son predeceased the mother, she not having at the time of the son’s death remarried, and the son leaving issue at his death, which event occurred, this omission by itself, in the will only, cannot aid the son and defeat the testator’s clear intention that the son should take only in the event he survived the death or remarriage of his mother, Lula Kiester. Neither can the so-called definite failure of issue rule be called to the aid of the son, it being inapplicable to this case. Who would take in such event can be answered in two ways — first by the rule of implication.

See: Shaw & Campbell v. Hoard, 18 Oh St 227; Shepard v. Peratina, 182 Fed. 2nd, 384; Restatement of the Law, Property, Volume 3, Section 272; and see also a very excellent article on this subject in 22 A. L. R. 2nd, 178. The will and codicil clearly show the implication that the son was not to take if he predeceased the remarriage or death of his mother, even if he did leave issue at his death, but in such event the issue would take, and the language of the will and codicil is so strong as to leave no doubt.

Secondly, and uppermost, irrespective of the implication rule, the court is of the opinion the language of Item II of the codicil from -the fourth line on through, does clearly amend the omission mentioned aforesaid as contained in the will. This language clearly explains and modifies the will to the extent needed to correct the will and supply the missing contingency in the will, without defeating the general harmony of the will and the codicil.

See: Foye et al, Executors & Trustees v. Foye et al, 35 Oh Ap 283.

It is axiomatic that where a codicil and will are contradictory, the codicil will still control, and the will cannot be read so as to succeed a codicil. In the subject case the will and codicil are not contradictory, the will merely having an omission which the codicil clearly remedies. The whole purpose of the codicil was to change the undivided one-half determinable life estate of the widow in the 402 Salem Avenue property with a power to sell, into a full base life estate, without a power to sell, and leave the will as to other property as it was or in status quo.

The codicil of the will clearly states this, and at the same time remedies the omission found in the will. It cannot be thought the testator did not know of the omission in the will at the time of the execution of the codicil and therefore could not and would not correct the apparent error in the will. On the contrary, at the time of the execution of the codicil, the evidence clearly and convincingly shows the testator had a grandson living, one Benjamin F. Kiester, III, being the issue of his only son, Benjamin F. Kiester II, while on the other hand no issue of his son was living at the time testator executed the will. To say that testator was not cognizant of the possible needs of this infant grandson, aged three months, and any other issue of his son to come later, on the date of the codicil, when the testator had gone to such great length to protect his lineal line in his codicil, is preposterous. Also, the evidence clearly shows and supports that the testator was a middle aged man of great experience, being a doctor, and it is equally preposterous to assume he did not know of the frailties of his son, Benjamin F. Kiester, II, then a mere boy of twenty one years of age. The court believes he clearly recognized the frailty of both his son and his wife, and accordingly took wise precautions.

Question 6—

“Since Lula Kiester has survived her only son, who died August 19th, 1955, and since Lula Kiester has never remarried, and since Benjamin F. Kiester, III, and Carolyn Jean Kutz have also survived their father, Benjamin F. Kiester, Jr., and are the only issue of his body, what interest does Benjamin F. Kiester III and Carolyn Jean Kutz receive in the property at 402 Salem Avenue, Dayton, Ohio, all as provided in the last will and testament of B. F. Kiester, Sr., together with the codocil?”

Question 7—

“Since Lula Kiester has survived her only son, who died August 19th, 1955, and since Lula Kiester has never remarried, and since Benjamin F. Kiester III and Carolyn Jean Kutz, have also survived their father, Benjamin F. Kiester, Jr., and are the only issue of his body, what interest or estate does Benjamin F. Kiester III and Carolyn Jean Kutz receive in the property and estate of the testator, other than the property located at 402 Salem Avenue, all as provided in the last will and testament of B. F. Kiester, Sr., together with the codicil?”

The court will answer questions six and seven together.

From all that the court has said before it clearly and naturally follows that it is the opinion of the court that Benjamin F. Kiester, III and Carolyn Jean Kutz, being the only issue and the only living issue of their father, Benjamin F. Kiester, II, now deceased, have at this time a vested remainder in all of the estate and interest of the testator, Benjamin F. Kiester, Sr., their grandfather, whether the estate be at 402 Salem Avenue or elsewhere, and that their remainder became absolutely vested at the time of the death of their father, Benjamin F. Kiester, II, he having died prior to the death or the remarriage of his mother and their grandmother, testator’s widow, Lula Kiester, who is still living and unmarried. The court further finds their vested interest is subject only to the life estate in their grandmother, Lula Kiester, in the 402 Salem Avenue property described in the codicil and subject only to her life estate and power to sell the undivided one-half interest as found aforesaid in the property other than the 402 Salem Avenue property.

See: Eastman v. Sohl, 66 Oh Ap 383; 20 O. O. 305; Alexander v. Willis, 30 Oh Ap 289, 2nd syl; Johnson v. Johnson, 51 Oh St 446.

In determining the interest aforesaid in the two grandchildren the court is of the opinion that before the death of their father, Benjamin F. Kiester, II, said grandchildren held contingent remainders, which were in the nature of alternative contingent remainders, the other contingent remaindermen being the class of collateral heirs set out in Item V of the will and that once the issue survived their father, Benjamin F. Kiester, II, he having predeceased his mother, testator’s widow, she not having remarried, their interests became absolutely and indefeasibly vested.

Linton v. Laycock, 33 Oh St 128.

The court can find no language in the will or in the codicil to the effect the son’s issue must also survive their grandmother, testator’s widow, who is still living. The law clearly favors vesting of estates at the earliest possible moment. The death of the son of testator, prior' to the death or remarriage of testator’s widow, in the case at bar, was the earliest possible moment for vesting.

See: Smith v. Block, 29 Oh St 488-497; Briggs v. Hopkins, 103 Oh St 321; Cleveland Trust Co. v. Mansfield, 34 O. O. 26; Simes & Smith on the law of future interests, Vol. 1, Sec. 149.

Question 8—

“What is the true meaning and intention of the testator, B. F. Kiester, Sr., as determined from reading together the terms of the last will and testament of testator, and the terms of the codicil of testator?”

Answer—

Question eight has now been answered in the foregoing answers under the above.

The court wishes to add, however, that it finds from all the evidence that all the personal property owned by Benjamin F. Kiester, Sr., the testator, was consumed, either in paying the debts at the time of his decease, or as provided in Items VII and VIII of the last will and testament. The intended beneficiaries set forth in Item V of the last will and testament take nothing because the son of the testator, Benjamin F. Kiester, II, died leaving issue, and before the death or remarriage of his mother, Lula Kiester.


source: Caselaw Access Project

author: By DOYLE, J:

license: Public Domain

text:
    TICHENOR, Acting Administrator, etc.. Plaintiff-Appellant, v. BOARD OF REVIEW, Bureau of Unemployment Compensation, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24025.
    Decided March 11, 1957.

      William Saxbe, Atty. Geni., John W. Hardwick, L. L. Yancey, Asst. Attys. Geni., for appellant.
    William Saxbe, Atty. Geni., Edward L. Sepessy, Asst. Atty. Geni., for appellee — Board of Review, B. U.' C.
    Jones, Day, Cockley & Reavis, for appellee — Chevrolet-Cleveland Div., General Motors Corp.
    (HUNSICKER, PJ, STEVENS and DOYLE, JJ, of the Ninth District, sitting by designation in the Eighth District.)
   OPINION

By DOYLE, J:

William T. McClung sought unemployment compensation benefits by virtue of a claimed statutory right. The acting administrator of the Bureau of Unemployment Compensation ruled in claimant’s favor, and stated that he was not subject to disqualification under §4141.29 (C) (1) R. C.. by virtue of claimant’s reason for separation of service with the Chevrolet-Cleveland Division of General Motors Corporation.

The question of disqualification then came on for decision by the Board of Review, Bureau of Unemployment Compensation, and, pursuant to a hearing, this Board ruled contrary to the decision of the administrator. Thereupon the question came on for hearing in the Court of Common Pleas of Cuyahoga County, which court affirmed the decision of the Board of Review. From the judgment there entered, the administrator has appealed to this court, and we are asked to reverse the judgment of the Court of Common Pleas and allow the claimant compensation benefits.

It appears the claimant was employed by the General Motors Corporation from September 5, 1952, through February 26, 1953, and then quit to accept, according to his testimony, “better employment with the (Nickel Plate) Railroad.”

He worked for the railroad for some months in the Cleveland area, and then, on December 14, 1953, while residing in West Virginia, applied to the West Virginia Department of Security for unemployment compensation benefits, and stated that he had been “laid off” by the railroad. The West Virginia Department referred the claim to the Qhio Bureau of Unemployment Compensation, and it was there allowed. The benefits awarded were charged to the account of General Motors Corporation.

It is provided under §4141.29 (C) (1) R. C., that no individual shall be paid benefits for the duration of any period of unemployment when it is established that such person has “Quit his work without just cause or has been discharged for just cause in connection with his work, provided * * 4 this section does not apply to the separation of a person from employment for the purpose of entering the armed forces of the United States * *

It is asserted inter alia that the claimant quit the General Motors Corporation “without just cause,” as that term is used in the act, and is therefore not entitled to the benefits of the act. On the contrary, the claimant asserts that he is saved by the last sentence of §4141.30 (E) R. C., to wit:

“In the event that an individual quits his work to accept full time employment pursuant to an actual bona fide offer of employment from another employer and is paid wages by such employer equal to ten times his weekly benefit amount, no disqualification shall apply under this section as a result of such quitting.”

It is the law that, if the claimant quit General Motors Corporation without just cause, then that company’s unemployment compensation account could not be charged for any benefits to the claimant. Secs. 4141.30 (E), and 4141.24 R. C.

We now proceed to analyze the term “just cause,” in respect to the “quit” of the complainant and his new work with the railroad.

In the statute, the legislature has defined carefully its meaning of the word “employment.” It has specified not only situations and conditions which the word “employment” includes, but has likewise spelled out situations which are not included in the meaning of the word.

In §4141.01 (B) (2) (j) R. C., may be found the pronouncement that the word “employment,” as used in the act, does not include:

“Service, performed after June 30, 1939, with respect to which unemployment compensation is payable under the act of congress approved June 25, 1938, and known as the ‘Railroad Unemployment Insurance Act,’ and service with respect to which benefits are payable under an unemployment compensation system for maritime employees established by an act of congress.”

While it is undoubtedly a fact that the claimant quit his employment with General Motors Corporation pursuant to a bona fide offer of work with the railroad, and his wages with the railroad were equal to ten times his weekly benefit amount, nevertheless, the word “unemployment,” as used in §4141.30 (E) R. C., above, does not mean unemployment with an employer such as the Nickel Plate Railroad, which is subject to the Railroad Unemployment Insurance Act. Sec. 4141.01 (B) (2) <.i) R. C.

It thus appears that, when claimant quit his employment to accept a job with the railroad, he quit without just cause, because he did not quit to accept employment from another employer as the term “employment” has been defined in the statute.

As s:ated by a member oí the Board of Review in a former case:

“The legisla .ure has * * '* provided that the claimant who quits one job 10 accept another forfeits his right to use wage credits earned in said employment unless and until he can fulfill certain conditions therein specified.”

ihe judgment of the Court of Common Pleas will be affirmed for the reason (stated by the appellee) that no charge can be made against General Motors’ unemployment compensation account for benefits to the claimant, because claimant’s voluntary quit from General Motors Corporation to work for the Nickel Plate Railroad was without just cause under the act, and was not saved by the last sentence of §4141.30 (E) R. C., since work for the railroad was not “employment” within the meaning of the act.

Judgment affirmed.

HUNSICKER, PJ, STEVENS, J, concur.


author: By MILLER, J.

text:
    DAVIS, Gdn., a Minor, Plaintiff-Appellant, v. INDUSTRIAL COMMISSION, Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5539.
    Decided March 18, 1957.

      R. Brooke Alloway, Columbus, for plaintiff-appellant.
    William Saxbe, Atty. Geni., James L. Young, Robert L. Summers, Asst. Attys. Geni., Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This cause was instituted in the Court of Common Pleas of Franklin County as an appeal from a decision of the Industrial Commission of Ohio holding that the plaintiff was not entitled to participate in the benefits of the State Insurance fund as created by the Workmen’s Compensation Act. Upon trial at the conclusion of all the evidence the jury, by direction of the court, returned its verdict in favor of the defendant and against the right of the plaintiff to participate in the State Insurance Fund.

The case is now before this court on the question of whether or not the trial judge erred in directing a verdict for the defendant.

The record reveals that there was only one issue before the trial court, to wit, whether or not the death of the decedent resulted from an injury or injuries sustained in the course of and arising out of his employment. We find that there was sufficient evidence to establish that the death resulted from injuries received in an altercation which will later be described. The real issue resolves itself into the question whether it was a compensable injury under the provisions of the Workmen’s Compensation Act.

In order that an injured employee may be entitled to an award of compensation under the Act it must appear that his injury was accidental and occurred not only in the course of but occurred from and arose out of the employment. A causal connection between the employment and the injury must be established. Industrial Commission v. Bankes, 127 Oh St 517.

The undisputed testimony discloses that at all times pertinent to the issues in this case the plaintiff’s decedent, John Collins, was employed as a truck driver for the August Wagner Brewing Company, engaged in delivering beer and making collections for the same; that at the end of the working day he would return his undelivered beer to the brewery and then make out a report for the day’s work. There was a room in the basement where this report could be made and also, as in this case, it was customary sometimes to retire to a taproom in the basement for this purpose. Other workmen were also permitted to visit this room at the end of a day’s work and drink 3.2 percent beer. While Collins was so engaged in making out his report another driver’s helper by the name of Washburn entered the taproom. He engaged in an argument with Collins over the ability of each as a beer salesman, which finally resulted in the calling of uncomplimentary names by each and then a fight ensued, resulting in the injuries which later proved fatal. It therefore appears that the altercation arose out of an argument whi.ch later resulted in Collins’ death. It should be noted that the argument arose out of a matter which was completely foreign to the work in which Collins was then engaged, to wit, in the making of his report for the day’s business. This work was voluntarily abandoned when he became engaged in the “fight” which it appears was a private affair. One who is injured while engaged in one’s private affairs is not permitted to participate in the Workmen’s Compensation Fund. This legal principle seems to be clearly set forth in Industrial Commission v. Ahern, 119 Oh St 41, paragraphs 2 and 3 of the syllabus:

“Under Section 35, Article II, Ohio Constitution, and the law enacted pursuant thereto, the phrase, ‘in the course of employment,’ connotes an injury sustained in the performance of some required duty done directly or incidentally in the service of the employer.
“An employee who is injured when engaged, not in the service of an employer, but in pursuance of the employee’s private and personal business, disconnected with the employment, is not entitled to compensation under the Workmen’s Compensation Law.”

A situation which is analogous to this “fight” case is one where two employees are voluntarily engaged in “horseplay” and one is injured. In the case of Industrial Commission v. Bankes, supra, at page 522, the court said:

“* * * The general rule is that no compensation is recoverable under the Workmen’s Compensation Act for injuries sustained through horseplay or fooling which was done independently of, and disconnected from, the performance of any duty of the employment, since such injuries do not arise out of the employment within the meaning of the acts.”

The general rule announced above should apply to “fighting” as well as to “horseplay”; that is, that no recovery can be had for injury sustained in a fight which was entered into independently of any duty of the employment. See also Williams v. Industrial Commission, 63 Oh Ap 66; Brown v. Industrial Commission, 86 Oh Ap 256; Ruffi v. American Fly Away Service, Inc., 61 Abs 236. Counsel for the appellant cite Industrial Commission v. Pora, 100 Oh St 218; Delassandro v. Industrial Commission, 110 Oh St 506; Pickett v. Industrial Commission, 98 Oh Ap 372. Each of these cases may be distinguished upon the facts involved in this respect, to wit, the injury was received while the employee was doing something in accordance with the desire of his employer. In other words, he was doing that which his employer intended him to do. The cause of the injury was an interference with an act performed in accordance with the employer’s intention. In the instant case there is no evidence to show any interference with an attempted performance of the decedent’s employment. In other words, the “fight” did not ensue or arise out of the work at which Collins was engaged, to wit, the making out of his report. On the contrary, the evidence indicates that the cause of the “fight” was personal animosity between Collins and Washburn entirely unrelated to the performance of any contractual duty. The trial court, therefore, did not err in concluding that there was no evidence which showed a proper causal relationship between the employment and .the injury.

We find no error in the record and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By SKEEL, PJ:

text:
    MOODY, Plaintiff-Appellant, v. MOODY, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24077.
    Decided May 8, 1957.
    Carl W. Halberg, W. B. Heiser, for plaintiff-appellant.
    Anthony C. Carlin, Michael T. Gavin, for defendant-appellee.
   OPINION

By SKEEL, PJ:

This appeal comes to this court on an entry of the trial court stating its conclusions as to the meaning of a mandate from this court entered on a former appeal. This court, in a former appeal, reversed the judgment of the Court of Common Pleas in dismissing a petition to vacate the judgment entered by that court when the case was tried on the merits. The judgment of reversal and the remanding of the case for further proceedings as it then appeared on the docket, as evidenced by the transcript, was for the reason that the judgment dismissing the petition to vacate was “manifestly against the weight of the evidence and contrary to law.”

This case is now before this court for the third time. The plaintiff husband filed a petition for divorce on September 11, 1950. Decree was entered for the plaintiff without contest on November 29, 1950 (the trial having been conducted ten days earlier), the divorce being granted on the grounds of “wilful absence for more than three years.” In the bill of exceptions presenting the evidence taken on the petition to vacate the decree of divorce, the plaintiff testified in chief that he cohabited with his wife on a trip to the south in 1949. Also, the separation agreement introduced into evidence, which was dated August 25, 1950, and signed by both parties and witnessed by plaintiff’s lawyer of record and his wife, states as a fact: “That whereas, the parties hereto are husband and wife and certain differences have arisen between them rendering it impossible for them to hereafter live together, and said parties have agreed upon an immediate separation and are now separated, * * *.” This provision of the agreement completely negatives any claim that this defendant left the plaintiff and that she was guilty of wilful absence for three years. The testimony of the defendant, which is not controverted in the record, is that the plaintiff left the defendant. This evidence is in part as follows:

“Q. Now, along in the year 1950, you may tell us about the separation agreement which was entered into at that time.
“A. Well, Mr. Moody left me, and he moved in with the aunt, I should say with Mrs., and he was anxious to marry her when he could obtain a divorce.
“Mr. Halberg called me, and he wanted to come to my home to talk over that Mr. Moody wanted to marry this woman as soon as possible, or he could get a divorce, and Mr. Halberg first drew up the separation agreement for $400, which I did not sign, because I have worked since I left college, and I worked practically the entire part of my married life, and I did not sign.”
“Q. How long before this time (referring to signing the separation agreement), had Mr. Moody left you?
“A. I don’t know the exact time, but he moved in with his lady friend’s aunt, and he had possibly been living there something like a year.”
“Q. Then he pulled out the bankbooks?
“A. He said, ‘You are sick, you are not able to work,’ and he said, ‘You expect me to feed you,’ and he walked out the door, and he had been keeping company with this lady friend.
“Q. Why you signed was to get hold of some money at least to live on, is that correct?
“A. I certainly did. He took all the bankbooks, and all the cash, and walked out the door, and he has repeatedly since then tried to railroad me into State Hospital.”

On cross-examination, the defendant testified:

“Q. Mrs. Moody, to be exact, isn’t it about seven years ago today that you separated? (This record was taken in November of 1953.)
“A. Well, I would have to check it. It might be a little bit more or Less, to be exact.
“Q. The records - -
“A. We were friendly, and we were man and wife up until the petition was served on me, and since then there has been no relationship whatsoever.
“Q. As a matter of fact, there was no relationship as man and wife —
“A. Not after I was served with the petition for divorce.
“Q. Let me ask you. There was no relationship as man and wife since the time you separated, since Mr. Moody left your home?
“A. No. Since the time I was served with the petition. Mr. Moody and I, since he left home, we went south together, and we lived at his stepmother.
“Q. What year was that, do you recall?
“A. A few months before the divorce petition was filed. It was in the summer, it was in July, and he was then living with Mrs. Boyn-ton, the aunt of the lady he wishes to marry.”

The defendant also testified that counsel of record in the divorce action had promised to notify her when the action came up for trial so she could attend the hearing and that she was told that a separation agreement, which was drawn and signed at plaintiff’s counsel’s home, wherein she relied upon his advice, did not mean anything. This testimony was as follows:

“Q. What representations, if any, were made to you at that time as to the binding nature of the agreement?
“A. Mr. Halberg says, ‘Go ahead and sign this. I am certain it don’t mean anything, anyway. The judge will decide what was fair in settlement.’ Mr. Halberg did high-pressure me, because Mr. Moody was anxious to get the divorce, and he said the woman was going to heir $75,000, and he was anxious to marry her.
“Q. You were later served with petition for divorce?
“A. We talked that over —
“Q. I say, you were served with a petition?
“A. Yes.
“Q. For divorce?
“A. Yes.
“Q. Whom did you consult concerning this matter?
“A. I only talked with Mr. Halberg. He was representing both of as.”

The plaintiff testified in the hearing on the petition to vacate (held November 16, 1953), as follows:

“Q. There was some evidence introduced — you separated exactly seven years ago today, isn’t that right?
‘‘A. As well as I can remember.
“Q. Since the time you separated, have you at any time had any cohabitation with Mrs. Moody?
“A. Since separation, it has been probably four years that we have been together.
A year before the agreement.
“Q. A year before the agreement?
“A. Yes.
“Q. That was the last?
“A. We seen each other each week.
“Q. Did you take her on a trip down south?
“A. I did, in ’49.
“Q. That was prior to the separation?
“A. That was prior to the agreement.
“Q. Mr. Moody, during the time up until the time the separatior agreement was drawn up, did yo.u pay her any money?
“A. I paid her every month.
“Q. How much did you give her?
“A. Around $100.”

From the foregoing evidence (particularly when considering the testimony of the plaintiff), it seems almost incredible that a divorce could have been granted in 1950 on the ground of wilful absence for three years or that a petition to vacate such decree on the ground of fraud practiced on the court should have been overruled. The plaintiff having been given testimony at this hearing, which if true would constitute a direct challenge to the truthfulness of any evidence supporting the claim that plaintiff’s wife was wilfully absent for three years before his action for divorce was filed, required the court to give immediate heed to a petition challenging the legality of the judgment. A divorce case is a matter of public concern and requires absolute veracity at every step. It was for this reason that this court reversed the judgment of the trial court dismissing the defendant’s petition to vacate. The decree entered granting a divorce based on the statutory ground of wilful absence for three years for the reason that such judgment, as shown on the face of the record, was clearly against the manifest weight of the evidence and contrary to law.

On the record, there being slight conflict in the evidence on issues of fact, this court did not feel called upon to enter final judgment directing that the petition be granted and, therefore, it was the judgment of this court that the cause be remanded with instructions to retry the issues presented on the petition to vacate the decree.

On the record, the petition to vacate not yet having been disposed of, we hold that the entry here appealed from, wherein the court attempted to interpret the former order of this court without taking evidence, is not a final order. We do, however, consider this proceeding as one to clarify the entry heretofore made by this court. The petition to vacate the decree is still pending. This appeal is, therefore, dismissed and the cause remanded with instructions to try the issues presented by the petition to vacate as provided by law.

HURD and KOVACHY, JJ, concur.


author: By SKEEL, J:

text:
    STATE, Plaintiff-Appellee, v. HRYNCZYN, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23964.
    Decided January 16, 1957.
    John T. Corrigan, Pros. Atty., Don DeRocco, Asst., for plaintiff-appellee.
    Stephen M. Young, for defendant-appellant.
   OPINION

By SKEEL, J:

This appeal comes to this Court on questions of law from a judgment of guilty and sentence upon the verdict of the jury as charged, the defendant having been indicted for the crime of murder in the second degree.

The defendant claims the following errors:

1) The court interferred with trial procedure by interrogating the witnesses and the defendant.

2) The court erred in making statements as to the evidence not sustained by but contrary to the record.

3} Error in admission and rejection of evidence.

4) Error in overruling defendant’s motion to limit the jury’s consideration of the case to the charge of manslaughter.

5) Error in not submitting a verdict on assault and battery.

6) Error in the general charge.

7) Error in overruling defendant’s motion for new trial.

8) That the judgment is contrary to law and not sustained by sufficient evidence.

A careful reading of the record discloses that the decedent Robert J Murphy, was a sailor on the Lakes. He did not leave his ship or returi to Cleveland until sometime during the latter part of December, 1955 He and his wife had had many difficulties. He had left her on occasions After he returned home in December, he told her he had another gir and that he was leaving her, took his clothes from their apartment and inserted an advertisement in a newspaper that he would no long® be responsible for her debts. The night he got the last of his clothes he returned and demanded the right to look for a pair of shoes. Wher he was refused admittance, he broke a glass in the storm door trying to get in. The police were called and under their supervision, he was allowed to make a search. He was a heavy drinker and on the night o: his death an analysis of his blood showed an alcoholic content (.42% sufficient to put him in the fourth stage of intoxication (stupor oa grogginess).

The defendant met the decedent’s wife (Mrs. Murphy) in a bar ir September, 1955. He thereafter kept company with her, frequently staying at her apartment overnight until the decedent’s return to Cleveland The defendant did not know the decedent and there is no evidence thal the decedent had any knowledge of the defendant or his relations witll Mrs. Murphy. A day or two before the night of the homicide, the defendant (the decedent having previously left his wife) moved to the apartment with Mrs. Murphy, there being some suggestion in the recorc that he would marry her after she was divorced. (The defendant testified that he went there to help Mrs. Murphy with the expense.)

There is not the slightest suggestion that the defendant had any previous criminal record.

On the night of the homicide, the decedent went to the home of his wife’s sister where he told her he was going to kill his wife and anybody he found with her. The sister called Mrs. Murphy (her sister) and informed her of the threat. At the time of the call, the defendant was at the apartment where he and Mrs. Murphy were watching a television program. As soon as the call warning them of the decedent’s threat was received, the defendant and Mrs. Murphy prepared, as quickly as possible, to and did leave the apartment because they were afraid of the decedent. It was agreed that Mrs. Murphy would go upstairs and stay with hei neighbor and friend where she could call the police if her husband came to the apartment. The defendant agreed to go to his brother’s home a short distance away. (This was where he had lived before he moved in with Mrs. Murphy.) There is some evidence that the defendant and his brother had a gun collection and that he was used to handling guns, He had brought a gun to the apartment (the one used in the homicide) sometime before the night of the homicide, explaining that there had been prowlers in the neighborhood. When they left the apartment, the defendant put the gun (an automatic) in his belt and the clip and bullets in his pocket. He explained that he took the gun so that the police would not find it. It was not loaded and the clip was put on the seat of the automobile but after a sharp edge caused him some discomfort, he put the clip into the gun. When Mrs. Murphy got upstairs, she discovered that her friend was not home so she returned to her apartment, called her sister to tell the defendant to come back and pick her up and that she would be on the street. The defendant returned as directed and after picking up Mrs. Murphy, they rode around awhile to see if her husband would come to the partment. The defendant testified with regard to their movements and return to the apartment as follows:

“A. Well, I told Laverne that he’s probably drunk and he’s just bragging and he probably won’t come over to the house.
“Q. Was she frightened or not?
“A. Yes, Yes.
“Q. What was said between you about seeing him and if either, if she saw him, about calling the police. What was said?
“A. If we seen him, we were going to call the police.
“Q. And state whether or not the purpose of that was to have him searched?
“A. Yes.”

There is no evidence that the defendant was searching for the deceased to engage in any conflict with him or that the gun which was taken along would or was intended to be used if a conflict ensued. In any event, not seeing the decedent in the neighborhood and without knowing he had gained entrance to the apartment by breaking the lock on the front door, they returned.

The door was not locked and was very slightly ajar but Mrs. Murphy said she thought, in her haste to leave, she had neglected to close it.

She pushed the door open, took a step or two and reached in to turn on the light located in the bedroom on a chest of drawers to the left when she felt fingers grasp her arm and something like cold steel toueh her. Whereupon, she pulled back, ran to the steps, and said “Come on Andy.” She then heard Andy (the defendant) say “I am not afraid of that knife. Put it down.” “I then seen Andy had the gun. He cocked it like this (indicating) and shot it.”

“Q. At the time the gun was shot, what about the light from the lamp?
“A. It was on.”

The only other evidence of the shooting comes from the defendant. He said:

“I don’t remember, like it is in my statement, who went in the house first, because I was all excited and nervous and everything but all I know is I walked into the house. ■ They say Laverne went in first.
“Well, all I know, I walked in the house with my jacket open, took about two and a half steps or so, reaching in the dark and feeling for the lamp, and I turned on the lamp. My head was down and when I turned the light on, I seen the man standing there. I glanced up and seen the man standing there with a knife in his hand and I believe he said something. I don’t know what it was. * * *
“I jumped back and this man came forward at me with the knife h his hand. I just reached in my belt, pulled out the gun, cocked it witl my hand on the trigger, cocked it, pulled the trigger and the gun wen off.
“I jumped back to the door. Then I noticed the man was bleeding
“I just held the gun and the man stopped. The man turned toward) the dresser, braced himself, looked at me, and didn’t say anything, was just shocked standing there. I didn’t know what to do, and th< man took a few small steps, pushed himself back and straightened himself up and then took a few small steps and fell down, and I told the man to lay there, I am going to call the police, and I was all excited anc everything. The phone was on the little stand and I put the gun on the floor and called the police and told them to send an ambulance. I sho1 a man.
“When the police came, I told them exactly what took place.”

At another place in the record, he said:

“Yes, quickly, I took my hand away from the lamp and reached in my pocket, pulled out the gun, cocked it and shot. I didn’t aim or nothing.”

And again he said:

“Q. And how long did that entire thing take?
“A. A matter of seconds.
“Q. And in that instant of time, do you recall whether you did say anything about the knife?
“A. Well, ‘Put down the knife. I’m not afraid of it.’
“Q. Do you recall that?
“A. I remember something about it, but I don’t know if that is the actual words or not, but I know I said something about a knife.
“Q. Were you afraid of the knife? Were, at the time, were you afraid of your life?
“A. At the time, I was.”

The deputy coroner testified that the decedent was sixty one inches (51") tall; that the bullet entered the defendant’s body 28Vz inches above the heel in a downward course. Quoting from the record, he testified as follows:

“* * * That bullet entered his right groin about here (indicating), right below the ligament here, passed through his thigh from above, slightly downward, struck the right femoral artery, which is the blood vessel which carries nourishment to the leg, tore it almost completely, and made its exit from back of the thigh.”

When the police arrived, they found the knife, which the decedent must have taken from the kitchen before his wife and the defendant reached the apartment, on the dresser in the exact position the defendant testified it had been put by the decedent before falling to the floor.

The first claim of error is not well taken. A trial judge is within his judicial power to interrogate a witness so long as he stays within matters that are relevant and does not by his inquiries show or even suggest that he holds views favorable to one side or the other — so that the evidence, and not the judge’s attitude in asking questions, is the only basis for the jury’s verdict.

The ease cited by the defendant on this question is State v. Lawrence, 162 Oh St 412, 123 N. E. (2d) 271, and is authority for the rule that the trial judge should not go beyond the bounds of propriety during a trial and cites Canon 15 of Judicial Ethics to the effect that:

“A Judge * * * should bear in mind that his undue interference, impatience or participation in the examination of witnesses or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause or the ascertainment of the truth in respect thereto.”

The record shows that the court stayed clearly within the bounds of this Canon. We also find that there is no substance to the second and third claims of error. The fourth assignment of error is considered at a later time in this opinion. The fifth claim of error is that the court should have charged on assault and battery.

There is no dispute but that the decedent came to his death as the sole and proximate result of the gunshot wound inflicted by the defendant. This entirely disposes of any contention that the court should have charged on assault and battery.

As to the sixth claim of error, we find the charge of the court on the subject of self-defense is not entirely free from criticism. The statement that the first element of self-defense is that the defendant must be free from fault should have been limited to fault in bringing about the altercation in which the defendant had to act in self defense. However, the defendant did not call this claim of error to the attention of the court, entering only a general exception. Under the facts in the case, we do not believe the defendant was prejudiced in any way by the charge.

Coming now to claims of error nos. 4, 7 and 8, as above enumerated.

We have been careful to set forth with considerable detail the evidence of the facts and circumstances leading up to the death of Robert J. Murphy. There is no doubt at all in the record but that the decedent came to his death as the direct result of a gunshot wound inflicted by the defendant. The only question, therefore, is whether the defendant acted then and there purposely to kill the decedent. On this question, we find that there is not sufficient evidence, under all the circumstances, to sustain this element of the state’s case. There is no direct evidence, except the discharge of the gun, as indicating a purpose to kill. The circumstances, as shown by the record, would negative an inference of such purpose, usually to be inferred by the use of a deadly weapon. In support of the defendant’s statement “I didn’t aim or nothing,” the statement of the coroner as to the place where the bullet entered the body and its downward course thereafter would indicate that the defendant did not aim at the decedent before discharging the gun. The de-' fendant was one experienced in the use of guns. The manner of the use of the gun, under the circumstances in this case, decedent and defendant being within two feet of each other at the time, are factual matters which, without other proof, would mitigate against the state in its attempt to establish beyond reasonable doubt the necessary element of purpose to kill in a case of murder in the second degree. We invoke the power vested in a reviewing court to modify the degree of crime of which the defendant has been found guilty where the offense charged has within it elements of a crime of lesser magnitude and the evidence does not support the principal crime charged but is sufficient to make out an offense within the principal crime charged.

Paragraph D of §2945.79 R. C., provides:

“That the verdict is not sustained by sufficient evidence or is contrary to law; but if the evidence shows the defendant is not guilty of the degree of crime for which he was convicted, but guilty of a lessor degree thereof, or of a lesser crime included therein, the court may modify the verdict or finding accordingly, without granting or ordering a new trial, and pass sentence on such verdict or finding as modified, provided that this power extends to any court to which the cause may be taken on appeal.”

The question of self-defense having been properly submitted to the jury and their verdict indicating that the defendant failed to sustain that issue by the proper degree of proof, we, therefore, proceed to modify the degree of guilt from murder in the second degree to manslaughter in the first degree, and as modified, the judgment affirmed and the cause remanded to the common pleas court for sentence as provided by law. Exceptions noted. Order see journal.

KOVACHY, PJ, HURD, J, concur.


author: Per CURIAM.

text:
    TRANSFER & CONSTRUCTION COMPANY INC., Plaintiff-Appellee, v. FRIEDMAN, d. b. a. ARREL FRIEDMAN TRANSFER & STORAGE, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3862.
    Decided November 1, 1956.

      Donald Kaufman, Youngstown, for plaintiff-appellee.
    Karam, Levy & Bryan, Youngstown, for defendant-appellant.
   OPINION

Per CURIAM.

Defendant, Arrel Friedman, doing business for the past several years as Arrel Friedman Transfer & Storage, appeals on questions of law and fact from a judgment of the court of common pleas permanently enjoining defendant from doing business under the name of “Arrel Friedman Transfer & Storage” and from using his name in conjunction with the words “transfer,” “hauling,” “cartage” and “construction,” “or any synonyms of such words, provided, however, that the defendant may use his own name either alone or in combination with words other than the words, or synonyms, above specified.”

The appeal was submitted to this court upon the pleadings, a transcript of the testimony taken in the court of common pleas, and argument and briefs of counsel.

Notwithstanding defendant appealed on questions of law and fact he filed assignments of error. Obviously this court will make its own finding regardless of any claimed error of the trial judge. However, for the convenience of counsel we will use such assigned grounds as a guide in reaching our conclusions.

In its petition filed in the court of common pleas plaintiff alleged its corporate existence since 1933, during which time it has been engaged in and has developed a large and profitable hauling, trucking, rigging and draying business under its corporate name in the city of Youngstown and vicinity; alleged it has acquired a valuable reputation and good will in the city of Youngstown, State of Ohio, and adjoining states, operating under a certificate issued by the Public Utilities Commission of Ohio; alleged that defendant (son of David Friedman, one of the founders of plaintiff corporation), is operating a business similar to plaintiff’s business, although not operating under a certificate issued to him by the Public Utilities Commission of Ohio, and has been using the name “Friedman” in soliciting business by deliberately and intentionally representing himself as being plaintiff, and thereby has misled the plaintiff’s customers into thinking they were transacting business with plaintiff, all of which constituted a fraud upon the plaintiff and injured and interfered with plaintiff’s business, thus greatly reducing its profit.

By answer defendant admitted plaintiff’s corporate existence and use of the name “Friedman” in his business, and denied all other allegations of plaintiff’s petition.

In Brown Sheet Iron & Steel Company v. Brown Steel Tank Company et al, 107 A. L. R. 1276 at page 1278, it is said:—

“* * * Generally there can be no exclusive appropriation of a family surname so as to constitute it a valid technical trade-mark, * * *; and courts ordinarily will not enjoin all use of the name, * * *. A person is entitled to honestly use his own name in connection with any business open to him. * * * However, a name may become so identified with a certain product and thus so well known in the trade that the owner thereof will be protected in its use on the principles of unfair competition. * * * Under those circumstances a stranger with the same name cannot use his name so as to deceive the public and pass off his goods as those of the owner of the established trade name. * * *.
“Defendant’s name, under the conditions as they were before the relief was granted by the lower court, because of the manner in which it was used, might have deceived the trade into thinking that its products were those of the plaintiff company. The relief granted will obviate any such possibility. * *

The record discloses confusion in the testimony of Bert Friedman on direct examination as follows:—

“Q. Will you tell us whether you have had any difficulty in this mix-up of names whenever they — ?
“Mr. Bryan: Objection, Your Honor; it calls for a conclusion.
“The Court: No, overruled; go ahead, he may answer.
“Q. —as to whether any time that you, yourself, knew of instances where customers have told you that they tried to get you and contacted other Friedmans, particularly — .
“Mr. Bryan: Objection, Your Honor.
“The Court: Overruled.
“A. Yes, we have.”

We have admitted this evidence as competent.

The law accords to each of the parties the right to honestly use his own name “Friedman” in connection with his own business, even though such use results in competition one with the other, and even though one (plaintiff) has personalized such name (the family name “Friedman”) in its business, as correctly held by the trial judge, and even though such right of one of the parties to use such name honestly in his business renders such inconvenience or loss to plaintiff damnum absque injuria.

See Unfair Competition and Trade-Marks by Harry D. Nims, Volume 1, Pages 191 and 192. Also see Garrett v. T. H. Garrett & Co., 78 Federal 472, 478.

“Where a personal surname becomes so identified with a business as to become practically synonymous with it, it follows if a rival uses this same name even though it is his surname, to do so cannot but create confusion.” Nims on Unfair Competition and Trade-Marks, Fourth Edition, Volume 1, Page 219, Section 72.

“When the likelihood of confusion and the consequent inconveniences to the public is compared with the small hardship on ordering a defendant to eliminate the cause of it by so small a change as the reversal of the order of two names, it is difficult to see why a court should not so direct. It is difficult also to see anything in a person’s right to use his name which permits its use in a confusing way, if he can so change his use of it as to eliminate the likelihood of such confusion; and such rule seems especially applicable to corporate names where the incorporators are under no obligation or necessity to use the personal name at all.” Nims on Unfair Competition and Trade-Marks, Fourth Edition, Volume 1, Page 269, Section 90.

“The very fact that the organizers of a company take, as part of the name of the company, the name of one of their number who is not experienced or skilled in the particular business, but whose name is the same or nearly the same as that of some rival who has an established business, gives rise to a presumption of fraud. The presumption may be rebutted; but the fact remains that despite the laudable desire of a promoter or incorporator to make his own name a part of the company name, despite his common-law right to use his own name as he will, one who enters a court of equity with greatest claim on its aid is he who has striven to differentiate his goods and his company as much as possible from all rivals, to sell his goods on their merits, and to advertise himself and his house in as individual a manner as possible.” Nims on Unfair Competition and Trade-Marks, Fourth Edition, Volume 1, Page 276, Section 91.
“* * * Ordinarily any other name would serve as well, except to deceive. In such circumstances little evidence of injury, actual or probable, is needed — the mere identity makes it practically inevitable. From this fact comes the idea that a conclusive presumption of unfairness and injury exists. * * *. Lawyers Title Insurance Co. v. Lawyers Title Insurance Corporation, 109 Federal (2nd), 35 at 43.
“* * * ^ is no iess a dictate of justice, than of sound reason, that every person must be understood to have intended to do just what is the natural consequence of his act deliberately done.” Wirtz v. Eagle Bottling Company, 50 New Jersey Equity, 164 at 168.

The normal presumption is that defendant’s use of his own name was an honest one, and he cannot be enjoined from the use of his own name in the same business except “in the case of deception, artifice, fraud, contract, estoppel or an attempt to pass off his business as the business of the prior user of the name.” McCoy v. McCoy, 60 Abs 253 at 255.

Accordingly, we must look to the record to determine the applicability of the foregoing rules to the evidence introduced in the case we review,

The admissible evidence discloses that plaintiff’s name “Friedman” has become attached to the storage, transfer, hauling, cartage, and construction business, in the particular area in which it seeks injunction, and in the mind of the public has come to be identified and associated with its particular business; and that defendant has solicited business under confused conditions and misled plaintiff’s customers into thinking and believing they were transacting business with plaintiff to plaintiff’s detriment; and that prior to listing his name in the telephone directory shortly before plaintiff filed this action defendant operated his business under various names, which did not include his own name “Friedman.”

We believe that “defendant’s name, under the conditions as they were before the relief was granted by the trial court because of the manner in which it was used might have deceived the trade into thinking that its products were those of the plaintiff company”; and that the relief we grant will obviate any such possibility. See 107 A. L. R. 1278.

Our finding and decree is for the plaintiff enjoining the defendant from the use of his name in conjunction with the words “transfer,” “hauling,” “cartage,” or “construction.”

PHILLIPS, PJ, NICHOLS and GRIFFITH, JJ, concurs.