author: By WALSH, J. By WALSH. J.

text:
    JACOBY, Estate of, In re.
    Probate Court, Butler County.
    No. 29040.
    Fitton, Pierce & Black, Hamilton.
    Richard A. Wilmer, Middleton.
   OPINION

By WALSH, J.

Lillián Jacoby died testate on the 30th day of July, 1955. Her Last Will and Testament, executed on the 17th day. of December, 1954, was admitted to probate by this Court on the 17th day of August, 1955. An action was thereafter filed in the Common Pleas Court of this County, contesting the validity of said Will, and a trial was had, resulting in a verdict of the jury and a judgment of the Court, sustaining the WU1.

Upon application of the Executor, this Court on February 19, 1957, fixed the amount and ordered a payment of fees to the attorneys employed by the Executor to defend the Will, allowing compensation to counsel for the Executor in the sum equal to six percent (6%) of the gross value of said estate, and to credit himself with such payment in his accounting herein.

This entry was endorsed as follows:

“Have seen F. P. N. B. Hamilton Community Home” and there were no other endorsements on said entry.

An application was filed on May 27, 1957, by the Community Home Association of Hamilton, Ohio, residuary legatee and Devisee named in the Will of Lillian Jacoby, deceased, alleging that the Court in exercising its discretion invested in the Court, should tax and charge the expense proportionately to and against the beneficiaries of said Last Will and of said Estate whose interests were protected and preserved thereby, in accordance with their respective proportionate interest in, and benefits derived from said estate.

To that application, a motion was filed August 2, 1957, by Richard A. Wilmer, one of the beneficiaries of the Last Will and Testament of Lillian Jacoby, deceased, and moved that the Court strike from the files, the application of the Community Home Association of Hamilton, Ohio.

In said motion, it is the contention of Richard A. Wilmer, that the order of the Court allowing compensation for Executor’s attorneys, is a final order and might have been appealable but is not otherwise reviewable by this Court.

The Court finds that it is necessary to first rule upon the motion before considering the application or the contention, or intentions that may have, or not have, been expressed in the Last Will and Testament of Lillian Jacoby.

The entry allowing compensation for Executor’s attorneys does not mention from what fund, or by whom, such fees should be paid. It merely states that the attorneys are entitled to the. compensation, and that the Executor is authorized to pay said sum to the attorneys, and to credit himself with such payment in his accounting herein. These monies then necessarily would be paid from the general funds of the estate. Inasmuch as exceptions could be taken to the Executor’s accounting any time up to and including the final account, this Court is of the opinion that the question raised by the applicant, the Hamilton Community Home of Hamilton, Ohio, was not determined in the entry allowing compensation for the Executor’s estate. ■

Therefore, it is the opinion of this Court that the applicant had a legal right to file its application asking for a determination as to whether such expenses should be apportioned or non-apportioned among the beneficiaries. The motion not being well taken is overruled.

The Court understands the law to be, that if said expenses are non-apportioned then the burden of paying these expenses will fall upon the residuary Legatee and Devisee, the Hamilton Community Home, Hamilton, Ohio.

The Last Will and Testament is as follows:

“I, Lillian Jacoby residing at 1015 South Main Street in the City of Middletown, Butler County, Ohio, being of full age and of sound and disposing mind and memory, do make, publish and declare this to be my Last Will and Testament, hereby revoking any and all • Wills and codicils heretofore made by me.
“ITEM I: I direct that all of my just debts, funeral and testamentary expenses be paid out of my estate as soon after my decease as may be found practicable.
“ITEM II: I give and devise my farm of 246 acres on the West Elkton Road in Wayne Township, Butler County, Ohio, to my good friend and former neighbor whom I have known since early childhood, Richard A. Wilmer of Middletown, Ohio.
“ITEM III: I give and devise my home, 1015 South Main Street, Middletown, Ohio, together with all furniture and effects therein except my jewelry and rings hereinafter mentioned to my good friend Mrs. Jack Wilson now residing at 14th and Main Streets in the City of Middletown.
“ITEM IV: I give and bequeath to the said Richard A. Wilmer all of my shares of capital stock in the Inside Realty Company, a corporation of Hamilton, Ohio.
“ITEM V: I give and bequeath all of my rings and jewelry to Mary Wilmer the wife of Richard A. Wilmer, to be held by her for her daughter, Mars» Allyson, until said daughter becomes old enough to take care of them.
“ITEM VI: I give and bequeath to Lallie Shearer whom I haVe known for many years and who is now living with me at my home in Middle-town the sum of $5,000.00.
“ITEM VII: I give and bequeath to the twin boys of Elvin Wagner of Middletown the sum of $2,000.00 each which I hope will aid in their education.
“ITEM VIII: I give and bequeath the sum of $2,000.00 each to Becky and Vicki Perkins, the daughters of Emma Perkins of Middle-town, Ohio.
“ITEM IX: I give and’bequeath to my cousin, Henry Kenworthy of Preble County, the sum of $5,000.00.
“ITEM X: All the rest and residue of my estate I give, devise and bequeath to the Hamilton Community Home of Hamilton, Ohio. Subject to the payment of taxes provided by Item XI of this Will.
“ITEM XI: All taxes due and payable to the State of Ohio or the tfnited States Government on the administration of my estate I direct to be paid out of the body of my estate and not charged against the individual devisees or legatees herein named.
“ITEM XII: Should any of the legatees or devisees herein, named file action to contest this Will or file any claim for services against my estate, I direct that any devise or legacy herein provided for them shall lapse and be of no effect.
“ITEM XIII: I hereby nominate and request the Probate Court to appoint my good friend, John D. Andrews, whom I have known for many years as Executor of this my Last Will and Testament. If for any reason said John D. Andrews is unable or unwilling to serve in such capacity, I nominate and request the Probate Court to appoint his partner and associate, Richard W. Berridge, as executor of this Will.
“I hereby authorize my said Executor to compound, compromise, and otherwise settle and adjust any and all claims, debts and demands against or in favor of my estate, and 1 further authorize my said Executor to execute and deliver all instruments in writing necessary or incidental to the proper fulfillment of the foregoing powers.
“IN WITNESS WHEREOF, I have hereunto subscribed my name to this my Last Will and Testament this 17th day of December, 1954.”
Lillian Jacoby (signed)
“Signed, published and declared by said Lillian Jacoby as and for her last Will and Testament in our Presence, and we, at her request and in her presence and in the presence of each other, have herunto set our hands this day and year above written at Hamilton, Ohio.”
/s/ Robert H. Martin Residing at Hamilton, O.
/s/ Hugh D. Holbrock Residing at Hamilton, O.
CODICIL
“In addition to the specific bequests contained in the foregoing Will I do hereby bequeath to Dr. E. C. Peck of Middletown, Ohio, the sum of $5,000.00 to be paid prior to the bequest contained in Item X in said Will and 1 do hereby reaffirm all the other provisions of said Will.
“IN WITNESS WHEREOF, I have hereunto set my hand this 17th day of December, 1954.”
/s/ Lillian Jacoby
Witnessed by:
/s/ Robert H. Martin
/s/ Hugh D. Holbrock

This Court feels it necessary to set forth briefly the contentions of parties, as set forth in the briefs of counsel.

Counsel for applicant cites §2101.32 R. C., which reads as follows:

“Rules and procedures of court of common pleas to govern power to award and tax costs.—

The probate judge shall have the powers, perform the duties, and be governed by the rules and regulations provided for the courts of common pleas and the judges thereof in vacation. The sections of the Revised Code governing civil proceedings in the court of common pleas shall govern like proceedings in the probate court, when there is no provision on the subject in Chapters 2101. to 2131., inclusive, R. C.

“In all actions or proceedings had in the probate court, whether ex parte or adversary, the court may award, tax, and apportion costs between the parties, on the same or adverse sides.”

This Court believes this to be the law applicable where no provision is made in a Will, or the administration of the Will or Trust, for payment of any .cost or expenses, or where it could not be determined in such a Will that the testator had expressed any intention or direction as to who among the beneficiaries should defray the expenses and debts.

It appears to this Court, that §2107.54 R. C., which reads as follows:

“Contribution; exception — When real or personal property devised or bequeathed, is taken from the devisee or legatee for the payment of a debt of the testator, the other devisees and legatees must contribute their respective proportions of the loss to the person from whom such payment was taken so that the loss will fall equally on all the devisees' and legatees according to the value of the property received by each of them.
“If, by making a specific devise or bequest, the testator has exempted a devisee or legatee from liability to contribute to the payment of debts, or if the will makes a different provision for the payment of debts than the one prescribed in this section, the estate must be applied in conformity with the will.
“A devisee or legatee shall not be prejudiced by the fact that the holder of a claim secured by lien on the property devised or bequeathed failed to present such claim to the executor or administrator for allowance within the time allowed by §§2117.06 and 2117.07 R. C., and the devisee or legatee shall be restored by right of contribution, exoneration, or subrogation, to the position he would have occupied if such claim had been presented and allowed for such sum as is justly owing thereon.
“This section does not affect the liability of the whole estate of the testator for the payment of his debts. This section applies only to the marshaling of the assets as between those who hold or claim under the will.”

cannot be ignored in the determination of the matter before it.

This section provides that if there is any intention expressed by the testator as to how or by whom the “debts” shall be paid then the intention of said testator would be a controlling factor.

Therefore, it is necessary for this Court to examine the Will from its four corners, and to determine whether or not this Testatrix directed that such'“debts” and other costs of administration, or as she determined it, “testamentary expenses” should be paid from the residual, or that the Court, in its discretion, should allow an apportionment or non-apportionment in the payment of the expense of attorneys fees.

Counsel for the applicant cites the' case of Holmes v. Hrobron, 93 Oh Ap 1 as a leading authority in the- State of Ohio, in this case. It will be'noted in the Hrobron case that this was an action for declaratory judgment, which is essentially an action to construe the Will and for a proper accounting between the life tenant and the remaindermen as well as between the life tenant and the trusts instituted in the Probate Court. There Item 1, of the testators will directed “that all my just debts and funeral expenses be paid out of my estate as soon as practicable as soon as my decease.” The life tenants question propounded to the Court was “should the cost and expenses of this litigation be charged to the income of the life tenant or to the corpus of the remaindermen. The life tenant contends that expenses of this litigation qre properly chargeable to income on the ground that the demand of the life tenant for additional income, in a letter to the trustees, made it necessary that trustees file this action for declaratory judgment in order to protect the trust estate.”

In its opinion, the Court further said:

“The term ‘cost’ as used in §10501-22 GC, includes not only Court Costs, but other expenses incident to the litigation with respect to which the Court may make an award and finding. In our opinion, in addition to Court Cost, it included compensation to the special master commissioner, stenographic and accounting charges and compensation to counsel for the respective parties which may be properly chargeable to the income of the corpus. The Court not only has statutory authority but has inherent discretionary power to apportion the cost of this litigation ‘as it adjudges to be right and equitable.’ ”

On page 75, the Court further says:

“There is no provision in the Will which controls the judgment of this Court in determining against whom the expenses of litigation are properly chargeable or the manner in which the expense should be apportioned between the parties. Emphasis added. The Court is constrained to do that which in its judgment seems to be just and equitable.”

On appeal of the Hrobron case to the Supreme Court of Ohio, that Court in 158 Oh St page 530, inquiring into who should be required to pay the cost and expenses of the litigation stated:

“that the major items are taxable, Court Costs and fees for services of trustees attorneys, services of life tenants attorneys, services of the remaindermens attorneys rendered in the determination of numerous questions respecting the powers of the trustees, the rights of the life tenants and the protection of the remainderman, were properly expenses and should be divided, should be paid equally out of the corpus and the income of the trust.”

It is the opinion of this Court that an entirely different fact situation exists in the Hrobron case and the case at bar.

In the Ullman case, decided October, 1909, and reported in Ohio Circuit Court, new series, volume 12, page 340, there was an objection urged upon the Court, upon appeal, as to the claim for additional compensation allowed for the Executor. It being contended that the Executor had no authority to employ counsel or to expend monies of the estate in defense of the Will, and the Court ought not to allow him (Executor) credit for any fees paid counsel for such services.

With this contention, this Court does not agree. That Court, by Obiter Dictum, stated that:

“We think in this particular case, where this Executor was practically a trustee and clothed with some extraordinary powers in addition to ordinary duties of Executor, it was perfectly proper and right for him to intervene, and the benefited parties should have been compelled to contribute to the payment of expense thereof either out of the estate general or any other equitable way that the court may direct.

Further on the Court says:

“that in this particular case however, the allowance to the Executor generally out of the estate, for money paid by him as attorney fees in the contest of this Will, results in placing the entire burden upon the residuary legatee.
“True, the expense of attorneys in the settlement of an estate must be paid out of the residuary fund, it is only to extraordinary expense in the contesting of a Will that the devisees and legatees under the Will should be compelled to contribute, etc.”

The Court in that matter could not pronounce in any law whatsoever, upon an apportion or non-apportion expense for counsel for the Executor in the defense of any Will contest.

In 22 O. Jur. 2-d, page 268, paragraph 267:

“Whether Charged to General Estate or Apportioned—
“Allowable attorneys’ fees are treated as expenses of administration. They are properly charged to the corpus of the estate.
“Whether the expenses of a successful defense of a will contest should be charged to the general estate or be equitably apportioned among the interests passing by the will presents a considerable question, but the intention of the testator, if .expressed in the will, is controlling and a direction to pay debts includes costs of administration. In the absence of a contrary intention expressed in the will where there are specific legacies and devises and a residuary estate is created, expenses incurred by the executor are chargeable against the estate and will not be equitably apportioned amorig the several beneficiaries.”

In the Dickey case reported in 87 Oh Ap page 255, the testator in Item 1, of his will, directed his Executor to make payments from his estate of all his just debts, expenses of his last illness and burial, and all of the State and inheritance taxes which may be levied on his estate or which may be imposed on any devisee or bequest made by him herein, together with the necessary expenses of administering his estate. There was a residuary clause in the Dickey will and there was a contest to invalidate the Will and have it held for naught. The Executor engaged counsel and was successful in sustaining the will as the Last Will and Testament of Arthur C. Dickey. The question arose in that case as to whether or not such expenses as attorneys’ fees should be paid out of the residual of the estate or be apportioned among the various beneficiaries.

By Item I, in the Dickey Will, the Executor was directed to pay from the estate all the just debts, expenses of last illness, burial, State Inheritance tax, together with the necessary expenses of administering the estate. Judge Love, in a very well considered opinion, in deciding the Dickey case held that the testator intended, and that the Statutes of Ohio support his intentions, that all expenses, including reasonable attorney fees incurred in connection with contesting the Will are debts of the estate and should be paid by the Executor as part of the cost of the administration.

It should be noted that in the Will of Lillian Jacoby, the Executor was ordered and directed to pay all just debts, funeral and testamentary expenses out of her estate.

Do the words “necessary expenses of administering my estate” and “testamentary expenses” have the same import.

In the case of In Re: Kortright’s Estate, 85 Atlantic Reporter, page 109, the words “testamentary expenses” were used in the Last Will and Testament of the testatrix. That Court pointed out that by the sixth clause of her second Will, the testatrix directed that out of the proceeds of her English property which she authorized her Executor to sell, they should pay her funeral and testamentary expenses and debts in England and the legacies herein before, or by any codicil hereto bequeathed, and the duty on all legacies herein before, or by any codicil hereto bequeathed, free of duty. By the British Finance Act of 1894, it is made the duty of an Executor to pay the government an “estate duty,” declared by the act to be a “stamp duty” on “all personal property (wheresoever situate; of which the deceased was competent to dispose of at her death.”

Continuing the Court said:

“the testatrix intended that there should be two separate independent administrations of her estate and that her property in England should be distributed in one way and that in America in another. By the English Will she expressly directed that out of the funds to be realized out of the sale of her property in England there should be paid her funeral, and testamentary expenses. What did she mean by “testamentary expenses.” She is presumed to have known what the English Courts have declared these words to mean five years before she executed her will, and having executed it with such knowledge she must have been understood as having intended to use the words in the sense given to them by the courts when applying the Finance Act of 1894 to them”

In the Law Reports of the Supreme Court of Judicatore, of cases determined in the Chancery Division for England and Wales, Year 1900, volume 2, the case of In Re: Clemow. The Executor Robert Clemow had paid the funeral expenses of Gertrude Clemow at her death, but questions arose as to what was included under the heading of her testatmentary expenses. Mary Yeo took out this summons for the determination of the questions whether, under the directions contained in the Will of the Testator, the Executor and Trustees of this Will were bound or entitled to pay out of the residual estate (a) the cost of Thomas Buck of the action in the Probate Division; (b) all costs properly incurred by the plaintiff in, about, and incidental to obtaining the grant of letters of administration to the estate of Gertrude Clemow; (c) the estate duty payable on the death of Gertrude Clemow; (d) the fees, costs, charges, and expenses of, and in connection with, the administration of said estate, or any and which of them.

The Court held that the direction for payment of the “testamentary expenses” of the testator’s widow extended to (1) cost and expense of the plaintiff in obtaining the letters of administration, and in connection with the administration of the estate of the widow; (2) the cost of the brother of the action of the Probate Division, and (3) the estate duty payable on the death of the widow in respect to her personal property. '

THEREFORE, applying the proper intention of testatrix, the interpretation of the Statutes and the decisions of the Courts in the ’determination of testamentary expenses, it is the opinion of this Court that the words “testamentary expenses” embrace all those expenses that arise out of the protection and defense of the Last Will and Testament of Lillian Jacoby, deceased. To give a contrary interpretation to the words “testamentary expense” would be, in effect, to re-write the Will of Lillian Jacoby, deceased. It is a matter of law that she is presumed to know the nature of the words she uses in her Will and the effect such words will have upon the devolution of the property that she desires to bequeath or devise.

The Court therefore, finds that the applicant is not entitled to the relief he seeks and that the expenses are a charge upon the residual of this estate.

An entry may be drawn in accordance with this opinion.

JACOBY, Estate of, In re.

Probate Court, Butler County.

No. 29040.

Edwin Pierce, John D. Andrews and Richard A. Wilmer.

OPINION

By WALSH. J.

This matter comes on for hearing upon a Petition for Instructions, wherein the plaintiff John D. Andrews, as Executor of the’ estate of Lillian Jacoby, deceased, sets forth that by the terms of the Will of Lillian Jacoby, there was specifically bequeathed to Richard A. Wilmer, defendant herein, capital stock of the Inside Realty Company, consisting of fifty (50) shares, at the appraised value of Fifty Thousand ($50,000.00) Dollars. That the defendant, the- Community Home Association, is the residuary legatee under said will.

Plaintiff alleges that as such Executor, he was required to defend certain litigation involving said fifty (50) shares of capital stock of the Inside Realty Company, by reason of an action brought agaiast him as Executor, by one J. W. Holman, who claimed ownership of said shares by virtue of a contract, allegedly made by Lillian Jacoby during her lifetime; that said litigation terminated favorable to the estate of Lillian Jacoby, and thereafter plaintiff filed an application asking for authority of this Court to pay his attorneys a reasonable amount for their services in connection with said litigation.

The plaintiff asks for instructions of Court as to the payment for said services, and as to which of said defendants should be charged therewith in the distribution of said estate.

Well considered briefs have been prepared by counsel for each defendant, wherein each strongly contends that the financial burden of legal services should be placed upon the other. The question for this Court, and to be decided herein, is whether such expense shall be paid out of the residual of said estate, or from the shares of stock, transferable to the legatee Richard A. Wilmer.

The many authorities cited in each brief have been carefully studied by this Court. There does not seem to be any contention that the Executor does have a duty to defend and/or prosecute all actions that are necessary, or even in good faith, advisable to foster and protect the interest of the estate for which he is the fiduciary.

The authorities are innumerable, setting forth the law that an Executor does have the right, and duty, to defend all suits that may be brought against the estate. Further, that such an Executor has a duty to protect the estate from invalid and doubtful claims and obligations, and to preserve the estate and protect it from mis-management or action of waste.

This Court is not unaware of the fact that the Executor’s successful defense of an action brought against him by J. W. Holman, involving the ownership of the fifty (50) shares of stock of the Inside Realty Company, did preserve those assets of the estate for the benefit of Richard A. Wilmer, as such legatee thereof, under Item IV, of the Last Will and Testament of Lillian Jacoby. That by the successful defense of the action by the Executor, Richard A. Wilmer, as the legatee of the shares of stock was the only one who benefited therein.

Items I, IV, X and XI of the Last Will and Testament of Lillian Jacoby, deceased, read as follows:

“ITEM I: I direct that all of my just debts, and funeral and testamentary expenses be paid out of my estate as soon after my decease as may be found practicable.
“ITEM IV: I give and bequeath to the said Richard A. Wilmer all of my shares of capital stock in the Inside Realty Company, a corporation of Hamilton, Ohio.
“ITEM X: All the rest and residue of my estate I give, devise and bequeath,to the Hamilton Community Home of Hamilton, Ohio. Subject to the payment of taxes provided by Item XI of this Will.
“ITEM XI: All taxes due and payable to the State of Ohio or the United States Government on the administration of my estate I direct to be paid out of the body of my estate and not charged against the individual devisees or legatees herein named.”

Counsel for the Community Home Association cites §2101.32 R. C., and alleges that this Court has the power, authority and the duty, to tax the subject expense against the party, and only the party, who benefited by the services to be compensated. Sec. 2101.32 R. C., reads as follows:

“Rules and procedures of court of common pleas to govern power to award and tax costs.—
“The probate judge shall have the powers, perform the duties, and be governed by the rules and regulations provided for the courts of common pleas and the judges thereof in vacation. The sections of the Revised Code .governing civil proceedings in the court of common pleas shall govern like proceedings in the probate court, when there is no provision on the subject in Chapters 2101. to 2131., inclusive, R. C.
“In all actions or proceedings had in the probate court, whether ex parte or adversary, the court may award, tax, and apportion costs between the parties, on the same or adverse sides.”

This Court believes, as stated in a previous Opinion, this to be the law applicable where no provision is made in a Will, or the administration of the Will or trust, for payment of any costs or expenses, or where it could not be determined in such a Will that the testator had expressed any intention or direction as to who among the beneficiaries should defray the expenses and debts.

It continues to appear to this Court, that §2107.54 R. C., which Reads as follows:

“Contribution: exception — When real or personal property devised or bequeathed, is taken from the devisee or legatee for the payment of a debt of the testator, the other devisees and legatees must contribute their respective proportions of the loss to the person from whom such payment was taken so that the loss will fall equally on all the devisees and legatees according to the value of the property received by each of them.
“if, by making a specific devise or bequests, the testator has exempted a devisee or legatee from liability to contribute to the payment of debts, or if the will makes a different provision for the payment of debts than the one prescribed in this section, the estate must be applied in conformity with the will.
“A devisee or legatee shall not be prejudiced by the fact that the holder of a claim secured by lien on the property devised or bequeathed failed to present such claim to the executor or administrator for allowance within the time allowed by §§2117.06 and 2117.07 R. C., and the devisee or legatee shall be restored by rights of contribution, exoneration, or subrogation, to the position he would have occupied if such claim had been presented and allowed for such sum as is justly owing thereon
“This section does not affect the liability of the whole estate of the testator for the payment of his debts. This section applies only to the marshaling of the assets as between those who hold or claim under the will.”

cannot be ignored in the determination of the matter before it.

This section provides that if there is any intntion expressed by the testator as to how or by whom the “debts” shall be paid, then the intention of said testator would be a controlling factor.

Therefore, it is necessary for this Court to examine the Will from its four corners, and to determine whether or not this testatrix directed that such “debts” and other costs of administration, or as stated in the Will, “testamentary expenses,” should be paid from the residual estate, or should be borne by Richard A. Wilmer, legatee of the fifty (501 shares of stock.

Counsel cites the case of Foltz v. Boone, 107 Oh St 562, decided in May, 1923, as the law applicable in the present cause of action. With this contention, this Court cannot agree, for the reason, fees for a fiduciary and his counsel could not be obtained where such fiduciary was unsuccessful in the maintenance or defense of the action, also, the statute then in force has been amended to include fiduciary and counsel fees in the proper defense of actions, irrespective of the outcome of the litigation.

Sec. 2113.36 R. C., entitled “Further Allowance; Counsel Fees” reads as follows:

“Allowances, in addition to those provided by §2113.35 R. C., for an executor or administrator, which the probate court considers just and reasonable shall be made for actual and necessary expenses and for extraordinary services not required of an executor or administrator in the common course of his duty. When an attorney has been employed in the administration of the estate, reasonable attorney fees paid by the executor or administrator shall be allowed as a part of the expenses of administration. The Court may at any time during administration fix the amount of such fees, and, on application of the executor or administrator or the attorney, shall fix the amount thereof. When provision is made by the will of the deceased for compensation to an executor, the amount provided shall be a full satisfaction for his service, in lieu of such commissions or his share thereof, unless by an instrument filed in the court within four months after his appointment he renounces all claim to the compensation given by the will.”

Therefore, the statutes of Ohio support the holding that reasonable attorney fees should be allowed as a part of the expenses of administration. The phrase “should be allowed as part of the expenses of administration” is new, it having been included when the statute was amended, effective August 22, 1941. Therefore, this Court, in applying the proper intention of the testatrix, and the interpretation of the statutes and decisions of the Courts in the determination of “testamentary expenses,” is of the opinion that the words “testamentary expenses” braces all those expenses that arise out of the protection and defense of the Last Will and Testament of Lillian Jacoby, deceased.

The Court therefore, is of the opinion that the expenses incurred by the executor in the defense of the litigation involving the fifty shares of stock, is a testamentary expense and does hereby find that such expense is a charge upon the residual of this estate.

An entry may be drawn in accordance with this opinion.


source: Caselaw Access Project

author: By PETREE, PJ.

license: Public Domain

text:
    STATE, ex rel. FAEHR, Relator, v. SCHOLER, as Chief of Police, Respondent.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5749.
    Decided March 25, 1958.
    Alex Faehr, Columbus, for himself.
    Russell Leach, City. Atty., Bernard T. Chupka, City Pros., Columbus, for respondent.
   OPINION

By PETREE, PJ.

This is an original action in mandamus filed by the relator, acting as his own counsel, in which he seeks to require that the respondent, the Chief of Police of Columbus, Ohio, be ordered to show cause for his delaying the filing of an affidavit against relator and having a warrant issued thereon, or that a detainer filed by said Chief of Police on May 23, 1956, with the Warden of the Ohio Penitentiary be withdrawn.

We find no allegation in relator’s pétition which would give him any right to mandamus under the Fourteenth Amendment to the United States Constitution.

The reference which relator makes to the speedy public trial on charges guaranteed under Article I, Section 10, Ohio Constitution, does not apply to this type of. case but only to one in which a charge has been filed. After a charge has been filed, certain statutory procedure is required, and this Ohio constitutional provision may be invoked in such a case. There seems to be no provision in the Ohio law with reference to the detainer which relator refers to in his petition, unless §2965.09 R. C., the last sentence, would contemplate such detainer. This provision is as follows:

“All state and local officials shall furnish information to the commission, when so requested by the commission in the performance of its duties.”

In the first paragraph of §2965.09 R. C., beginning at the second sentence, we find the following, provision:

“When a prisoner becomes eligible for parole, the head of the institution in which such prisoner is confined shall notify the commission in the manner prescribed by the commission.”

While it is possible, in certain cases, for a prisoner in the Ohio Penitentiary to be tried by reason of §2941.40 R. C., there appears to be no statute which makes provision for such trial until a charge or indictment has been made or returned against a person.

While it is not apparent from the petition, it would seem that the relator is concerned about the detainer and what effect it may have if and when he becomes eligible for parole. When that time arrives, it will be the duty of the Warden to certify him to the Parole Commission; and it will be the duty of the Commission to exercise its sound discretion with reference to the rights of the relator to be paroled. We may assume that such Parole Commission will make its investigation and exercise sound discretion in the matter; that if it determines that a detainer has been lodged for an unreasonable time against a prisoner without a charge being filed, it may inquire into the reasons and subpoena witnesses to learn what reasons such official had for filing a detainer, and if no grounds are shown by such official and no charge lodged against the prisoner, the Commission may disregard the matter and proceed to pass upon said parole as if no detainer were filed.

We may assume, in the first place, in the absence of any showing to the contrary, that the Chief of Police had good cause for lodging the detainer with the Warden.

In view of the above §2965.09 R. C., wherein officials are required to furnish information to the Commission, we fail to see where this court would have any authority to require the Chief of Police to withdraw his detainer. Furthermore, this court would have no authority to hold the same null and void.

Since we feel that the relator’s rights can be adequately protected when he may become eligible for parole and that he will have an adequate remedy if officials connected therewith abuse their discretion or the Warden refuses to certify his name to the Commission when he becomes eligible for parole, we feel compelled to deny his writ of mandamus upon either ground set forth in his petition.

Demurrer sustained. The writ will be denied.

BRYANT AND MILLER, JJ, concur.


author: By BOPE, J.

text:
    STATE v. BUNDY.
    Municipal Court, Findlay.
    No. 51.
    Decided March 14, 1956.
   OPINION

By BOPE, J.

Defendant was arrested January 13, 1956, by Ralph Haddox, Marshal of the Village of McComb and Constable of Pleasant Township, in Hancock County, Ohio, on a warrant issued by the Clerk of this Court pursuant to an affidavit of the same date signed by the said Constable charging defendant with reckless operation of a motor vehicle, a misdemeanor under the laws of this state and an offense of which this Court has final jurisdiction. He was brought before this Court on January 14th and the warrant was returned, whereupon the following proceedings were had: defendant was informed by the Court of the charge against him and of his right to have counsel, he elected to proceed without counsel and entered a plea of Not Guilty, and the Court proceeded forthwith to examine into the merits of the charge.

The following witnesses were sworn and examined on behalf of the State:

Ralph Haddox, Marshal and Constable as aforesaid; Franklin Curtis, Deputy Marshal of McComb;

and on behalf of the defendant:

Eugene Bundy, defendant as aforesaid.

Thereupon the Court on its own motion undertook to consider the arrest of judgment in this case for the reason that the facts stated in the affidavit do not constitute an offense, and the case was continued.

The affidavit charges that defendant, on January 11, 1956, in the County of Hancock,

“did operate a motor vehicle, Ford, Ohio Li No. 4023-V in a reckless manner in and upon the driveways and grounds of the McComb School so as to endanger the property of said School”

contrary to the form of the statute, citing §4511.20 R. C.

This statute reads as follows:

“Sec. 4511.20 R. C. Reckless operation of vehicles. No person shall operate a vehicle, trackless trolley, or streetcar without due regard for the safety and rights of pedestrians and drivers and occupants of all other vehicles, trackless trolleys, and streetcars, so as to endanger the life, limb, or property of any person while in the lawful use of the streets or highways.”

The elements of this crime, each of which, to sustain a conviction, must be charged and proved beyond a reasonable doubt, are:

(1) Operating of vehicle, trackless trolley or streetcar

(2) Without due regard for the safety and rights of

(3) Pedestrians, and drivers and occupants of all other vehicles, trackless trolleys and streetcars so as to

(4) Endanger life, limb or property of any person while in lawful use of streets or highways

(5) Venue (in the territory of the court)

It appears from the testimony that on January 11, 1956, at about 10 o’clock P. M., the defendant, Eugene Bundy, who had been attending a meeting in the McComb School Building, left the building and entered his father’s car which was parked at the southwest corner. Starting the motor he drove north, accelerating rapidly, and at the northwest corner, as the driver attempted a right turn, the car skidded on the icy driveway and turned almost completely around. The sensation appears to have given the defendant pleasure, for he returned to the starting point and repeated the maneuver, under the observation of the constable and deputy marshal, who were watching from the northwest corner of the building. Defendant then started to leave the school grounds, when he was stopped and given a warning by the constable, and two days later he was arrested, as recited above.

The Court has no difficulty in determining as a matter of fact that the defendant did not operate the motor vehicle which he was driving at the time and place mentioned above, in the same manner as would a reasonably prudent person under similar circumstances. The Court considers that he did hot exercise .ordinary care, or show due regard for the safety and rights of any pedestrians, or drivers or .occupants of other vehicles who might have been at that place at the same time. The Court further considers that his conduct would tend to endanger the life or limb, or property, of any person who, or which, might have been there.

But this is not a civil case, involving liability in damages for negligence. This is a criminal prosecution, brought in the name of the State, charging the defendant with the commission of a criminal act, and it is the duty of the Court to determine whether any crime has been committed by this defendant.

Now a “crime” may be defined as a violation of, or neglect to perform, a legal duty of such importance to the protection of society that the State takes notice thereof and imposes a penalty or punishment for such violation or neglect. And in Ohio it is well settled that no act is a crime unless it has been specifically defined by the Lgislature and a penalty provided by them for the violation thereof. It is further settled that the rule to be applied in interpreting and construing a criminal statute is the rule of strict construction.

It will be noted that one of the elements required to constitute an offense under §4511.20 R. C., is that the act complained of must “endanger life, limb or property of any person while in lawful use of the streets or highways.” The complaint herein charges, and the evidence shows, that the defendant’s act was committed in and upon the driveways and grounds of the McComb School. The Court has difficulty in thinking of such driveways as “streets or highways.” Are they streets or highways?

In seeking the solution of this question, the Court finds that the Legislature has itself given a definition of “street or highway” in §4511.01 R. C., as follows:

“Street or highway” means the entire width between the boundary lines of every way open to the use of the public as a thoroughfare for purposes of vehicular travel.”

The key word here appears to be “thoroughfare,” the only Ohio definition of which that we have found appears in the case of Joseph v. Larkworthy, 15 N. P. (N. S.) 561, at page 570, thus:

“By a main thoroughfare, where it is not indicated or defined by direction, is meant a thoroughfare having greater length and a larger volume of traffic than intersecting streets or highways. The volume of traffic on a street is necessarily affected by its length.”

This is of no help to us. No other case or reported decision has been found bearing on the question here before us. There is, however, a well-considered, reported, formal opinion of Herbert S. Duffy, Attorney General of Ohio, dated October 6, 1949, appearing in 1949 Opinions of the Attorney General at Page 700, No. 1073, the syllabus of which reads as follows:

“1. ‘Streets or highways,’ as used in §6307-30 GC, do not include private roads and streets.
“2. A statute defining a crime or offense cannot be extended, by construction, to persons or things not within its descriptive terms.”

In this opinion the Attorney General advised the Prosecuting Attorney of Geauga County that a person could not be charged under §6307-20 GC (the language of which was the same as that of present §4511.20 R. C.), for reckless driving on a street or road that is not a public highway.

While the Attorney General’s Opinion is not controlling on this Court under the rule of stare decisis, it is, nevertheless, as the considered opinion of the State’s chief legal officer, of persuasive weight, and in the absence of other authority this Court is constrained to follow it.

There remains to be determined whether the driveways around the McComb School are, in the proper sense, public highways. The usual test is a dedication by the owners, or those holding title, to the use of thé public at large, for the purpose of travel or the transportation of persons or property, without distinction, discrimination or restriction, except such as is incident to such reasonable regulations as may be promulgated by public authority in the interest of the general public, accompanied by maintenance by the public street or highway departments. There is no evidence of such dedication or maintenance here before the Court.

In the case of State v. Root, 132 Oh St 229, the Supreme Court held:

“Where a driveway, leading into and located wholly upon state hospital grounds, is built, maintained and controlled by such hospital for its own use and the public having business therewith, and where such driveway was never dedicated or legally accepted as a public thoroughfare, it does not come within the purview of ‘roads or highways’ . . . .*’

Finding, therefore, as a matter of law, that the facts stated in the affidavit in this case and proved by the evidence produced at the trial do not constitute an offense under §4511.20 R. C., the Court will arrest judgment herein and discharge the defendant.


text:
    SABROSKE, D. D. S., Plaintiff, v. WILLIAMSON, Defendant.
    Municipal Court, Findlay.
    No. 169.
    Decided February 14, 1958.
    R. B. Dunn (J. C. Firmin), for plaintiff.
    R. W. Drake, for defendant.
   OPINION

By BOPE, J.

This is as action on an account, for medical (dental) services performed by the plaintiff for the defendant, in which the amount claimed is $139.45 with interest from February 26, 1954. Defendant filed an answer of general denial, and on the trial he insisted that one of the prosthetic devices included in the account, described as a partial lower denture, was not right, that it hurt him, that he took it out of his mouth shortly after leaving the doctor’s office and did not wear it thereafter, and he claimed a set-off of $115.00 therefor.

The account filed with the petition covers a period from February 13, 1954, to February __ 1956, and while perhaps it could have been made more detailed and specific, nevertheless it appears to be sufficiently adequate to describe the principal items of work for which the plaintiff’s charges were made, and appears to be in keeping with the plaintiff’s usual office practice. From the testimony it appears that the full period of the Doctor’s treatment of this patient actually started on September 9th, 1953, and ran to a date some time in the month of February. 1956. But the discussion and argument at the trial was concerned primarily with the denture placed on February 26, 1954, and priced at $105.00, and to this accordingly the court will limit its attention.

It is the general rule of law in Ohio that a physician or surgeon is entitled to recover from the patient for his services, in the absence of an express contract, under an implied agreement to pay for them what they are reasonably worth. 31 O. Jur. 500, 504. In Saffin v. Thomas (1894), 8 O. C. C. 253, it was held that the value of the service, as a general rule, is to be ascertained and fixed by the usual price paid for like services at the time and place of performance. This rule was modifled by the Court of Appeals of Mahoning County in the case of a dentist (1928), Mayhew v. Bailey, 7 Abs 107, in which the court wrote no syllabus but stated in the opinion that there can, perhaps, be no definite and fixed schedule of prices to be charged by dentists in view of the fact that each, as a sort of specialist in his class, fixes his own prices, which may differ substantially from prices fixed by other dentists of varying degrees of skill. In that case it appeared that nothing had been said between the parties in advance as to price, the patient claimed that the work was defective and he had been overcharged, the dentist said that he performed the work in a skillful and workmanlike manner, and that the prices charged were the same as he usually charged for similar work. The jury found for the dentist, and the Court of Appeals found no error was committed. They held that proffered testimony as to the charges of other dentists was rightly excluded, but that evidence that this patient was charged more by this dentist than was his custom for similar services would be competent.

The case at bar is similar to the Bailey case. Plaintiff said his work was properly and competently performed. It does not appear that the prices charged were other than his usual prices for similar work. The only evidence of any defect was'defendant’s statement that the denture hurt. The court knows from personal experience that dentures can be uncomfortable at best, and is inclined to discount the defendant’s testimony for that reason, besides which it appears that he made no real effort to have the plaintiff make an adjustment to relieve his discomfort for almost two years following.

For the reasons given, finding and judgment will be entered on the half-sheet for the plaintiff and against the defendant in the amount of $139.45 with interest from February 26, 1954, and costs. A journal entry may also be prepared.


author: By DEEDS, J.

text:
    STATE, Plaintiff-Appellee, v. WEAVER, Defendant-Appellant.
    Ohio Appeals, Second District, Madison County.
    No. 197.
    Decided March 22, 1956.
    William S. Culp, West Jefferson, for plaintiff-appellee.
    Vradelis & McCray, Dayton, for defendant-appellant.

      (DEEDS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By DEEDS, J.

This appeal is from a judgment of the Court of Common Pleas, Madison County, affirming the judgment and imposition of a fine against the defendant-appellant in the Mayor’s Court of the Village of Jefferson in Madison County.

The facts pertinent to a consideration of this appeal appear in the narrative bill of exceptions filed in the Court of Common Pleas and contained in the record filed in this court as follows:

“That defendant was arrested while driving the trailer-truck of his employer, Foreman Bros. Supply Co., of Dayton, Ohio, and charged with violating the weight provisions of §§7246-7250, inclusive, GC; that defendant’s employer had obtained a special permit from the Ohio Director of Highways to carry additional weight but that upon weighing said, vehicle .at a' weigh-station, it was found to be carrying weight in excess of that authorized by the special permit; that the Mayor’s Court of the Village of Jefferson, Ohio, in determining and assessing the fine to be imposed, found the overload to be 27,900 pounds and computed the fine under §7205-1 GC; and that in computing the fine, the Mayor’s Court did not take into consideration the additional weight authorized by the special permit but treated it as a nullity.
“BE IT ALSO REMEMBERED, that at said hearing on appeal before the Common Pleas Court of Madison County, Ohio, counsel for defendant urged that the Mayor’s Court erred in failing to consider the special permit in computing the fine; that the court failed to properly interpret the law with respect to the authority conferred upon the Director of Highways by §6307-106 GC; and that the court erred in fining defendant under §7250-1 GC, rather than §6307-107 GC. That counsel for plaintiff urged that the special permit was a mere license, revocable upon any violation thereof, and becoming a nullity thereafter for the purpose of computing a fine; that the Mayor’s Court properly interpreted §6307-106 GC, and that the §7250-1 GC, was the proper penalty section under which violators of §6307-106 GC, should be fined and that the statute was properly applied.”

The law of the State providing for the issuance of special permits by the Director of Highways authorizing the operation of vehicles exceeding the maximum weights as provided in §§7246 to 7250, inclusive, GC, being §6397-106 GC, omitting the portion thereof not relevant here, is as follows:

“ (a) The director with respect to highways under his jurisdiction and local authorities with respect to highways under their jurisdiction may, in his or their discretion, upon application in writing and good cause being shown therefor, issue a special permit in writing authorizing the applicant to operate or move a vehicle or combination of vehicles of a size or weight of vehicle or load exceeding the maximum specified in §§7246 to 7250, inclusive, GC, or otherwise not in conformity with the provisions of this act upon any highway under the jurisdiction of the authority granting such permit and for the maintenance of which such authority is responsible. Any such permit may be issued for a single or round trip or in special instances for a certain period of time.
“(b) The application for any such permit shall be in such form as the director or local authority may prescribe.
“(c) The director or local authority is authorized to issue or withhold such permit at its discretion; or, if such permit is issued, to limit or prescribe conditions of operation of such vehicle or vehicles, and may require such bond or other security as may be demed necessary to compensate for any damage to any roadway or road structure.”

The application for the special hauling permit executed by the employer of the defendant and pursuant to which the permit involved in this cause was issued, contained express conditions as follows:

“14. Non-compliance with the general or special provisions of a permit, exceeding the weights or dimensions granted, or operating on dates or upon highways other than assigned shall render the permit null and void and the operator of the vehicle subject to arrest, as provided in §§7246 to 7250-1, inclusive, GC.”

The penalty, consisting of a fine in the amount of $866.50 was computed and assessed in accord with the mandatory provisions of §7250-1 GC.

It is contended by the defendant that the Director of Highways had not authority for including the limitation or condition to the effect that in the event of a violation of its terms and requirements by the holder, the permit should be rendered null and void and that therefore the defendant was subject to the penalty as provided in §6307-107 GC, instead of §7250-1 GC, as determined by the Mayor’s Court. Sec. 6307-107 GC; provided as follows:

“Violation a misdemeanor; exception; penalty.
“(a) It is a misdemeanor for any person to violate any of the provisions of this act unless such violation is by this act or other law of this state declared to be a felony.
“(b) Every person convicted or found guilty of a misdemeanor for a violation of any of the provisions of this act for which another penalty is not provided shall, for a first offense thereof, be fined not more than $50.00; and for a second offense within one year thereafter, not less than $10.00 nor more than $100.00, or imprisoned in the county jail or workhouse not more than ten days, or both; and for a third or subsequent offense within one year after the first offense shall be fined not less than $25.00 nor more than $200.00 or imprisoned in the county jail or workhouse not more than thirty days, or both, provided, further, that when any person is found guilty of a first offense for a violation of Section 21 (§6307-21 GC), of this act upon a finding that he operated a motor vehicle faster than thirty-five miles an hour in the business districts of a municipal corporation or faster than fifty miles an hour in other portions, or faster than thirty-five miles an hour while passing through a school zone during recess or while children are going to or leaving school dining the opening or closing hours, the court may, in addition to the penalty herein provided, sentence such offender to the county jail or workhouse for not more than five days.”

It is our view that the foregoing section was not intended to apply to violations of the provision regulating the issuance of special hauling permits, at least under the circumstances as shown to exist in the record before us, but that such cases involving overweight loads are subject to §7250-1 GC, as determined by the Mayor’s Court and the Court of Common Pleas.

The special permit authorized by law to be issued in the discretion of the Director of Highways was designed to protect 'the defendant as a holder of same, providing the conditions assented to were complied with, otherwise the defendant would be amenable and subject to the penalties as specifically prescribed by the legislature for hauling a load in violation of the requirements of the law.

The Supreme Court has stated the distinction between a right or franchise and a mere license or permit in the opinion of the court in the case of Kellogg v. Cincinnati Traction Co., et al., 80 Oh St 348:

“When a franchise is granted, without limit as to time, and invested with the elements of a contract, it is usual for the grant to be made by the state, subject to the approval of the municipality, and when the question is as to the power of the city to make such a grant, it should be held not to exist unless expressly given or necessarily implied, but when the use is not in the nature of a franchise but is a use that is recognized as permissible by an abutter, the city may authorize it by a permit or a license, under the general power given it of care, supervision and control. Such a permit or license is a mere Regulation of the use; it contains none of the elements of a contract, and is revocable at the pleasure of the city. It is so held respecting a permit to an abutter to occupy a street with building materials, to be used in a building on the abutting lot in the City of Columbus v. Penrod, 73 Oh St 209.”

The Supreme Court reiterated the principle applicable here in the later case of State, ex rel. The Interstate Vaccine Co. v. Board of Agriculture of Ohio, et al., 98 Oh St 469, as follows:

“1st. That Order No. 4 of the Board of Agriculture of Ohio, to regulate the sale and distribution of hog cholera virus in Ohio, is a valid exercise of the police power conferred upon the Board of Agriculture by §1108 GC.
“2nd. That the relator having applied for and received a permit under the terms and conditions of Order No. 4, cannot now complain of the revocation of that permit under the terms and conditions written in the order.”

Therefore, the judgment of the Court of Common Pleas is affirmed and remanded for execution.

MILLER, PJ, HORNBECK, J, concur.


author: By GARY, J.

text:
    GRAVES, Admrx., Plaintiff, v. GRAVES et, Defendants.
    Probate Court, Muskingum County.
    No. 4411.
    Decided December 15, 1956.
    Pugh. Knapp & Miller, By Philip J. Miller, Zanesville, for plaintiff.
    R. William Geyer, Zanesville, for defendant, William B. Palmer.
   OPINION

By GARY, J.

This action is brought for the construction of certain provisions in the will of Elizabeth Palmer, deceased, especially the bequest made in Item 3 of her will, which reads as follows:

“Item 3. My brother, Howard Palmer, and I own a dwelling at No. 1312 Jackson Street, Zanesville, Ohio, and I give and devise my one-half interest therein to my brother, Howard Palmer, his heirs and assigns, forever.”

The residuary clause of the will is as follows:

“Item 6. The real estate which I own, situate at No. 102 South Seventh Street and at Nos. 718 and 720 South Street, Zanesville, Ohio, together with all the rest, residue and remainder of my personal property, wheresoever situate, which I may own or have the right to dispose of at the time of my decease, I give, devise and bequeath to my brother, Edward J. Palmer, for and during his natural life, and upon his death, or in the event he be not living at the time of my decease, then I give, devise and bequeath all the property as in this item described, to my brother, Howard Palmer, for and during the term of his natural lifetime. After the death of both of my said brothers, Edward J. Palmer and Howard Palmer, I direct that the Probate Court of Muskingum County, Ohio, appoint some suitable person or institution to complete the administration of my estate, and I further direct that my said administrator de bonis non with the will annexed, so appointed by said court, be and he or it is authorized to convert all of my remaining estate into cash, and after the payment of costs of administering my estate, including taxes and other charges incidental thereto, I direct my administrator to make distribution thereof .as follows:
“The one full one-tenth (l/10th) part of said net cash I direct shall be distributed in equal shares to the Boys’ Town of Nebraska, the Coburn Methodist Church of Zanesville, Ohio, and the Zanesville Branch of the Salvation Army; and the remaining nine-tenths (9/10ths) of my net estate, I direct my administrator to distribute, share and share alike, to my nephews and nieces as follows:
Hazel Graves, niece, Columbus, Ohio
John J. Palmer, Nephew, Middletown, Ohio
Alice Palmer, niece, Zanesville, Ohio
Lora Alexander, Niece, Johnson City, Tennessee
Joseph. A. Palmer, Nephew, Cleveland, Ohio
Russell Palmer, Nephew, Bloomington, Illinois,
Clarence Palmer, nephew, Columbus, Ohio
Delbert Palmer, nephew, South Zanesville, Ohio
and in the event of the death of any of my nephews and nieces leaving issue, then such issue to take the share of their deceased parent.”

Plaintiff has propounded the following questions in connection with the construction of these Items of the will:

“FIRST: Under Item 3 of said will, does:
“(a) The bequest of said real estate therein made lapse by reason of the fact that the said Howard W. Palmer predeceased the testatrix?
“(b) Do the provisions of §2107.52 R. C., the so-called Anti-lapse statute apply to this case?
“(c) If (b) above is answered in the affirmative and the bequest does not lapse, what interest is devised under this Item 3, viz., an undivided one-half interest mentioned therein, or the entire fee simple estate in said real estate which the said Elizabeth Palmer owned at the time of her death, she having inherited the undivided one-half theretofore owned by her said brother Howard W. Palmer by his said will?
“(d) If (b) above is answered in the negative and (a) above is answered to the effect that the bequest did lapse, did the decedent die intestate as to the real estate located at 1312 Jackson Street, Zanesville, Ohio, in view oí the fact that there is no general residue clause in said will and Item 6 thereof refers only to the real estate located at 102 South Seventh Street, and 718 and 720 South Street, Zanesville, Ohio, and the ‘rest and residue and remainder of my personal property’?
“SECOND: Does the fact that William Burdette Palmer was a legally adopted son of the said Delbert Palmer, rather than a natural son, in any way affect his inheritance of the share of his father, Delbert Palmer, under the terms of the will of Elizabeth Palmer?”

The facts in the case are undisputed, and are as follows:

Elizabeth Palmer died December 9, 1955. Her will, which was executed September 26, 1949, and probated on January 10, 1956, made bequests to her brothers, Charles Palmer, Edward Palmer, and Howard Palmer, all of whom predeceased her, as well as bequests to several nieces and nephews, including Delbert Palmer, a son of Howard Palmer, who also predeceased the testator, leaving his widow, Lillian O. Palmer and a legally adopted son, William Burdette Palmer, both defendants herein, as his survivors. The evidence further shows that the dwelling located at 1312 Jackson St., Zanesville, Ohio, had been bequeathed to the decedent, Elizabeth Palmer, her sister, Mattie Palmer, and her brother Howard Palmer under the will of Nolan Hardman, deceased, and that Mattie Palmer died intestate and her undivided one-third interest was quit-claimed by all her heirs to Elizabeth Palmer and Howard Palmer by deed dated May 18, 1938.

We will consider the questions raised in 1 (a) and (b) together. This involves the application of §2107.52 R. C., the pertinent part of which réads as follows:

“When a devise of real or personal estate is made to a relative of a testator and such relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, such issue shall take the estate devised as the devisee would have if he had survived the testator. . . .”

This question was treated comprehensively by the Supreme Court in the case of Flynn v. Bredbeck, 147 Oh St 49, which involves a set of facts very similar to those in the instant case. In that case, the court reached the conclusion that the devise did not lapse whether or not the words “their heirs and assigns forever,” were used. The further fact, in the instant case, that two other items of the will made definite provision to apply in the event of the prior death of the named beneficiary, indicates that by the absence of such a provision in Item 3, the testatrix did not intend for this bequest to lapse, but that it should pass to the heirs of Howard Palmer. Question 1 (a) is therefore answered in the negative and 1 (b) in the affirmative.

We come now to the issue raised in 1 (c), which is the principal question to be decided, namely, was the interest devised under Item 3 of the will an undivided one-half interest, or the entire fee simple estate. This problem arises because of the fact that Elizabeth Palmer owned an undivided.one-half interest at the time the will was executed and acquired the other one-half interest before her death. The question of after-acquired property was considered in a well-written opinion by Judge Wiseman in the case of Fitzgerald v. Bell, 20 O. O. 18, which cited the various statutes and numerous cases dealing with this matter. Quoting from page 22 of this opinion:

“At common law the rule was that as to lands a will spoke as of the date of its execution, and after acquired real property did not pass; but as to personalty the will spoke as of the date of death, and after acquired personal property passed.
“. . . . Sec. 10504-71 GC (§2107.50 R. C.), reversed the presumption with respect to both after-acquired personal and real property, the effect being to declare the common law with respect to after-acquired personal property, and in derogation of the common law with respect to after-acquired real property. Consequently, this section should be liberally construed in favor of those seeking to take advantage of its provisions with respect to after-acquired personal property.”

Conversely, of course, the section must be strictly construed with respect to after-acquired real property.

The section'in question (§2107.50 R. C.), provides that property shall pass under the will “unless such will manifests a different intention.” The point at issue in the case at bar is whether or not the will manifests an intention that the after-acquired half-interests should not pass. Item 3 of the will specifically devises “my one-half interest” in the real estate.. If the will had stated “my interest,” we are of the opinion that the entire title would have passed, but the fact that the devise is limited to one-half manifests the intention that that is all the testatrix devised. The further fact that Howard Palmer died almost four years before Elizabeth Palmer, and during that time she made no efiort to clarify the matter by making a new will, indicates that she was satisfied with the provisions in the will. The court is unable to change the express wording of the will when the testatrix did not see fit to do so during her lifetime. Accordingly, the answer to 1 (c) is that an undivided one-half interest in the real estate at 1312 Jackson St. is devised by Item 3 of the will.

There remains the matter of disposition of the undivided one-half interest of said property which was acquired after the execution of the will. The contention has been made that the residuary clause disposes only of the three parcels of real estate mentioned therein, and the rest, residue and remainder of the personal property. This is true as to the bequest to Edward J. Palmer and Howard Palmer. However, this clause further directs that after the death of these brothers, the administrator de bonis non with the will annexed is authorized to convert all my remaining estate into cash and make distribution as directed. Since there is a presumption that testatrix did not intend to die intestate as to any of her estate, this clause must be construed to include all her remaining estate, real as well as personal, and the undivided one-half interest in the Jackson Street property would be included therein.

Finally, there is the point raised in the second question, namely, Whether the fact that William Burdette Palmer is an adopted child of Delbert Palmer in any way affects his inheritance. This question is governed by §3101.13 R. C., which provides that an adopted child may inherit through as well as from the adoptive parent. The case of Flynn v. Bredbeck, supra, interpreting an earlier but similar statute, held that an adopted child is regarded as “issue”-for the' purpose of inheritance. We therefore hold that William Burdette Palmer is entitled to inherit in the same manner as if he were the natural son of Delbert Palmer.


author: By THE COURT.

text:
    SCHOTT, d. b. a. DUKE’S RESTAURANT, Appellant-Appellee, v. BOARD OF LIQUOR CONTROL, Appellees-Appellants.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5888.
    Decided April 15, 1958.
    J. Eugene Roberts, Hubbard, Charles T. Kaps, Columbus, for appellant-appellee.
    William Saxbe, Atty. Genl., Chester Hummell, John W. Leibold, Asst. Attys. Genl., Columbus, for appellees-appellants.
   OPINION

By THE COURT.

Submitted on motion of Eleanor Schott, the appellee herein, seeking an order dismissing the appeal of the Department of Liquor Control for the reason that the same is not properly taken pursuant to the provisions of §119.12 R. C. In the case of Katz v. Dept. of Liquor Control, 166 Oh St 229, the court held that an administrative agency may appeal from a judgment of the Court of Common Pleas only upon question^ of law relating to the constitutionality, construction or interpretation of statutes and rules and regulations of the agency. An examination of the judgment entry reveals that the order of the Board was reversed for the reason that it was not supported by reliable, probative and substantial evidence and was not in accordance with law. The grounds upon which the judgment was rendered are not stated in the entry; hence, we may resort to the court’s opinion for the same. Andrews v. Board of Liquor Control, 164 Oh St 275. The appeal was from an order of the Board affirming that of the Department denying the appellee’s application for D-1 and D-2 liquor permits for the reason that the applicant was not the- owner of the business being conducted on the subject premises. The court’s opinion reveals that the application for the permits was made before the appellee a'cquired the business, saying,

“With respect to the application itself, while made before appellant had actually acquired the business, it was made in anticipation of so acquiring same, and at the time of the hearing, it had become true in fact; that is, that Eleanor Schott was the sole owner of the business.
“The court therefore concludes that the action of the Board’s ruling was unreasonable and unlawful.”

It therefore appears that when the application was made the appellee was not the owner or operator of the business. Whether or not a permit may be issued under such circumstances involves a construction of §4303.13-14 R. C. Hence, we conclude that the Department may prosecute the appeal under §319.12 R. C., and the motion will be overruled.

PETREE, PJ, MILLER, J, concur.

BRYANT, J, not participating.


text:
    HOFFMAN and HOMISH, Jr., d. b. a. VIDEO SERVICE, Appellants, v. BOWERS, Tax Commissioner, Appellee.
    Board of Tax Appeals, Department of Taxation, State of Ohio.
    No. 34085.
    Decided October 10, 1957.
    Norman Cohen, Toledo, for appellants.
    William Saxbe, Atty. Genl., By Chester H. Hummell, Asst. Atty. Genl., for appellee.
   OPINION

This cause and matter came on to be considered by the board of tax appeals upon a notice of appeal filed herein under date of April 8, 1957, by the appellants above named from a final sales tax assessment order made against them by the tax commissioner under date of March 13, 1957, for the audit period July 1, 1952, to June 30, 1956. The final order of the tax commissioner reads as follows:

“Mr. Bruce Winchester, Attorney, 899 Spitzer Bldg., Toledo, Ohio, George G. Dedes, Accountant and J. B. Hoffman appeared for hearing at the office of the Department of Taxation, Spitzer Bldg., Toledo, Ohio, and stated that their former accountant died in December 1956 and they had no evidence that the assessment is in error.
“Remission of the 15% penalty requested.
“Cancellation of the penalty is denied as vendor did not comply with Rule 126, Department of Taxation.
“Therefore, it is the order of the Tax Commissioner that the assessment stands as issued in the following amount:
Assessment Penalty Total
(Sales) $2650.40 $397.56 $3047.96.”

The cause was submitted to the board of tax appeals upon the notice of appeal, the statutory transcripts supplied by the tax commissioner, and the testimony and evidence presented at a hearing before an attorney examiner of this board in Toledo, Ohio, on August 8, 1957.

Appellants, during the audit period, were engaged in the business of repairing and servicing television sets, in making sales of parts to dealers, and in the sale and installation of television antennas in the Toledo, Ohio, area.

Being unable to make a bracket audit because the books of appellants did not show the taxable sales, together with the tax collected thereon as required by §5739.11 R. C., the tax commissioner proceeded to compute appellants’ sales tax liability under the provisions of §5739.13 R. C. (§5546-9a GC), as follows:

$215,884.60 Gross income for audit period.

—44,861.83 Deduct income from sales under 41c per unit, income from parts sold for resale, interstate sales, service on television and radio sets, sale of a truck, etc., as set out on page 40 of the tax commissioner’s transcript.

$171,022.77 Receipts subject to tax.

.03 Sales tax rate.

$ 5,130.69 Sales tax due.

— 2,480.29 Deduct for prepaid tax receipts canceled and payments made.

$ 2,650.40 Basic sales tax unpaid.

397.56 15% statutory penalty.

$ 3,047.96 Total due State of Ohio.

There appears to be no dispute as to the correctness of the above figures and the only issue before this board is whether the tax commissioner should have allowed, as an additional deduction from gross income, the sum of $28,755.00, which amount, appellants say, represents income from labor and profit in the installation of television antennas. The appellants say that included in the gross income figure of $215,884.60 is the sum of $38,340.00 received from customers for whom they installed television antennas at an average price of $49.50 for each installation. No sales tax was charged to or paid by the customer in any of these transactions. Appellants estimate that the antenna cost them about $6.50 each and that the other material used in each installation is $6.50, for a total estimated material cost of $13.00 per installation, in the aggregate, the appellants say that the $38,400.00 figure can be broken down as follows:

$ 38,340.00 Total income from television antenna sales and installation.'

— 9,585.00 Estimate cost of antennas and materials.

$ 28,755.00 Estimated labor and profit.

The testimony and evidence disclose that appellants, on the invoice delivered to their television antenna customers, made no breakdown as between cost of materials and the cost of labor, and no sales tax charge was noted thereon. Neither did the records kept by appellants in their office make any such separation. The appellants, therefore, kept no records showing a breakdown of the cost of labor and materials, either of any single installation or those installations made as a whole; and thus the breakdown computed by appellants is merely an estimate.

The sole issue in this case is whether the sales tax should be applied to the full price of television antenna installations made by the appellants or only to the cost of materials used in such instruments.

Sec. 5739.02 R. C., levies an excise tax on retail sales. The basis of the tax is price. “Price” is defined by §5739.01 (H) R. C., which statute was amended in an important regard during the audit period. Sec. 5739.01 (H) R. C., as it read prior to September 30, 1955, was as follows, reading only the pertinent portion:

“ ‘Price’ means the aggregate value in money of any thing paid or delivered, or promised to be paid or delivered, by a consumer to.a vendor in the complete performance of a retail sale, without any deduction on account of the cost of the property sold, cost of materials used, labor or service cost, interest or discount paid, or allowed after the sale is consummated, or any other expense. Price does not include the consideration received for labor or services used in installing, applying, remodeling, or repairing the property sold if the consideration for such services is separately stated from the consideration received for the tangible personal property transferred in the retail sale. Price is the amount received exclusive of the tax, provided the vendor establishes to the satisfaction of the tax commissioner that the tax was added to the price.” (Emphasis added.)

The same section effective on and after that date reads in pertinent portion:

“ ‘Price’ means the aggregate value in money of any thing paid or delivered, or promised to be paid or delivered, by a consumer to a vendor in the complete performance of a retail sale, without any deduction on account of the cost of the property sold, cost of materials used, labor or service cost, interest or discount paid, or allowed after the sale is consummated, or any other expense. Price does not include the consideration received for labor or services used in installing, applying, remodeling, or repairing the property sold if the consideration for such services is separately stated from the consideration received or to be received for the tangible personal property transferred in the retail sale. Such separation must appear in the sales agreement or on the invoice or billing rendered by the vendor to the consumer. Price is the amount received exclusive of the tax, provided the vendor establishes to the satisfaction of the tax commissioner that the tax was added to the price.’" (Emphasis added.)

These statutory provisions have received judicial notice and interpretation in a number of cases.

In Wilson v. Glander, 151 Oh St 479 (1949), 39 O. O. 298, the Supreme Court of Ohio held, reading the syllabus:

“Where a person sells material to another and in connection therewith furnishes labor or service in applying such material to his customer’s property, the entire transaction shall be considered a sale and subject to tax, unless there is a clear separation, in the making or billing of a charge therefor, of the material furnished and the labor or service performed.”

In Roberts v. Glander, 156 Oh St 247 (1951), 46 O. O. 118, the Supreme Court said in its syllabus:

“By virtue of the provisions of §§5546-1 and 5548-3 GC (§§5739.01 and 5739.03 R. C.), a sales tax is determined by the consideration for both services rendered and the materials furnished in an upholstery repair job unless the consideration for services is separately stated from the consideration for materials furnished, and a vendor who separately states such consideration on his books of account available to the Tax Commissioner and who collects the proper tax from his customer is entitled to have excepted as a predicate for the sales tax the consideration for services rendered even though he fails to make such separate statement on an invoice delivered to his customer-vendee for such repair job.” (Emphasis added.)

At page 251, Hart, J., said:

“It is apparent that the purposes to be served in making the separation of charges are to enable the Tax Commissioner to determine and assess the tax and to enable the vendor to make his return to the state and claim his exception by keeping copies of his invoices or by keeping books of account reflecting the breakdown of the charges.”

See, also, the second paragraph of the syllabus in the case of Cogen v. Glander, 156 Oh St 263 (1951), 46 O. O. 125.

Upon the undisputed testimony, and evidence presented by appellants’ witnesses as to the contents of their books and records, it is considered that no useful purpose would be served in ordering a reaudit in this case. The evidence establishes' that there is no breakdown on the books and records of the partnership.

And upon a consideration of the entire case, as presented to this Board, it is considered and ordered that no error is found in the final order of the Tax Commissioner and the same is, therefore, affirmed.