text:
    JONES, Admr., Plaintiff-Appellant, v. NEU, Defendant-Appellee.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24404.
    Decided May 29, 1958.

      Burgess, Fullmer, Parker & Weh, for plaintiff-appellant.
    Joseph H. Brady, for defendant-appellee.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment or final order entered by the Probate Court of Cuyahoga County dismissing the administrator’s complaint filed against Lester O. Neu for concealment of assets of the Estate of Anna M. Neu.

The deceased, Anna M. Neu, died April 26, 1957. She was eighty years of age at the time of her death. The decedent opened a savings account in the Society for Savings Bank on August 24, 1922. On August 3, 1945, she signed a printed form, prepared by the bank, providing that Lester Osborn Neu was authorized to withdraw from the account “such sums as he may call for.” On March 1, 1957, the decedent was taken to a nursing home for care where she stayed until her death. On April 4, 1957, Lester O. Neu withdrew two separate amounts from this account. The first amount withdrawn was $400.00, followed later that day by a withdrawal of the remaining balance of $9,061.09, which he transferred to his personal savings account at the Society for Savings. The account to which he transferred the money was the account his mother started for him on the same day the account here being considered was begun.

It is the claim of the administrator that the money withdrawn by Lester O. Neu was the property of the deceased when withdrawn and also her property at the time of her death. This action seeks an order for the return of the money to the estate and is brought under the provisions of §2109.50 R. C. From the dismissal of the administrator’s complaint, the following errors are presented in this appeal:

1. Said Court erred in overruling complainant’s motion for new trial and in entering judgment dismissing the complaint against defendant Lester O. Neu.

2. The Court’s written findings of fact are manifestly against the weight of, are not sustained by any, and are contrary to the evidence.

3. The Court’s written conclusions of law are erroneous and are contrary to law.

4. The judgment is contrary to law.

5. The judgment of the Court is manifestly against the weight of, is not sustained by any, and is contrary to the evidence.

6. The Court erred in refusing to admit evidence offered by the appellant to the refusal of which the appellant duly objected.

7. The Court erred in the admission of evidence offered by the, appellee Lester O. Neu, to which the appellant objected.

8. Other errors of law appearing during the progress of the trial and apparent on the face of the record.

There are undisputed facts which need to be stated before considering the contradictory evidence presented by the parties in giving consideration to the errors presented.

Two savings accounts were opened at the Society for Savings Bank of Cleveland, Ohio, by the decedent on August 24, 1922. The first was opened in her own name (Anna M. Neu) by a deposit of $350.00, the account being No. 508731. She was then about forty-four years of age. At the same time, she also opened a savings account (No. 508732) in the name of and for her son, Lester O. Neu, who was then twelve years of age. Both accounts remained active or current until April 4, 1957, when Lester O. Neu closed out his mother’s account by first taking our four hundred dollars which he received in cash, and then later, on the same day, by transferring the balance of his mother’s account (No. 508731), to-wit, the sum of $9061.09 to his own account (No. 508732). Thus, for thirty-five years, each carried a separate bank account in the same bank in their individual names. On the day the son’s account was opened a notation was made thereon that “Anna M. Neu may draw for him ” This, of course, was necessary because of his age. A trusteeship, however, was not provided. There is no evidence that this power was ever withdrawn and, therefore, continued until the day of the mother’s death.

On August 3, 1945, the following authority providing that Lester O. Neu could draw from the account of his mother, Anna M. Neu, was executed:

“Cleveland, Ohio
August 3, 1945.
“The Society for Savings in the City of Cleveland, is hereby notified that Lester Osborn Neu (signature) is authorized to withdraw hereafter from my account No. 508731 with said Society, such sums as he may call for.
“Revocable only by notice in writing, signed by me, and accompanied by the passbook.
(s) Anna M. Neu.”

On the date this authority was signed, $2962.50 was on deposit in the account and a notation was put on the passbook “Lester O. Neu may draw for her 8/3/45.” On this date (August 3, 1945), a deposit of $1789.68 was made. Also on that day Lester O. Neu had a balance in his own account of $1337.04.

There were two others bank accounts disclosed by Lester O. Neu in his testimony. They were deposited in a branch of the Cleveland Trust Company located at Clark Avenue and West 25th Street, one account being in the name of Anna M. Neu and the other in the name of Lester O. Neu. Each held the power to draw from the account of the other. These accounts were closed by Lester O. Neu on April 25, 1957, one day before the death of Mrs. Neu. He testified that there was about $5,000 in his account at the Cleveland Trust Company and about $1,000, plus interest, in Mrs. Neu’s account at that time. The date that these accounts were opened is not disclosed in the record.

The deceased owned the house where she and her son, Lester O. Neu, lived. The daughter, Mrs. Edna Arnold, prior to her marriage, also lived there. Mrs. Neu’s brother was a permanent board-paying resident at this address. The son, Lester O. Neu, who lived in his mother’s home all his life, never paid a stipulated price for his room and board. He testified as follows:

“Q. Did you pay any board at your house, there?
“A. No, not directly, just what ever I — when I cashed my checks, such as a payroll check, I paid the utility bills all in one trip and the rest of the money went in to my mother year after year.”

The defendant testified that his mother was employed at the City Hospital until 1936 and that her brother, who lived with them, paid from $6.00 to $10.00 per week as the years progressed and that his mother had no independent income after leaving her employment at City Hospital.

The decedent’s bank account grew from occasional deposits of not to exceed $100.00 at any one time until July 14, 1937 when a deposit of $1204.39 brought the balance to $2416.39. It then continued to grow by adding dividends received from the bank and by small deposits until August 3, 1945 when a deposit of $1789.68 brought the balance to $4752.18. In December, 1947, a deposit of $3021.25 increased the account to $7889.81. Only two other deposits of any consequence were made, aside from the yearly bank dividends, after the last date mentioned, i. e., $100.00 on March 2, 1951 and $300.00 on March 4, 1952.

The personal account of Lester O. Neu prior to March 2, 1945, when the balance was $1327.85, is not shown by the record. The more sizeable deposits on that part of this account shown in the record, aside from dividends, were $273.44 on August 5, 1947, $600.00 — November 10, 1950, $500.00 — September 26, 1951, and $500.00 — December 4, 1952, the balance on December 31, 1956 being $3629.29. When the deposit of $9061.09 was transferred to this account from the deceased’s account on April 4, 1957, the total balance became $12,690.38.

Lester O. Neu owned a house from which he derived an income. This house was mortgaged. The income from rent, the required payments of taxes and mortgage payments, are not disclosed. Lester O. Neu was employed for ten years prior to the date of the trial (June 12, 1957) as a tower man for the Erie Railroad Company. His income from such employment is not in the record, nor is any employment prior thereto disclosed. There is no evidence in the record that any of the deposits made to the account of Anna M. Neu were to be considered as Lester O. Neu's money unless his testimony of what occurred on August 3, 1945 be so considered. This testimony disclosed what took place when the authorization permitting him to withdraw from his mother’s account was signed at the bank, and a deposit of $1789.68 was made. Lester O. Neu testified about this occasion as follows:

“Q. Coming down to August the 3rd of 1945, there has been testimony here as to transfer or alterations in these bank books or these bank accounts. Now, can you explain to the Court, in your own words, on or about August the. 3rd of 1945, what brought about these changes in this bank book?
“A. .That was done so that the money would be available in case anything happened to me and I put it in her — her bank, in her bank account and she could draw also on mine. We was both there together, as I recall it, right at the same time.”

The fact is that there is no explanation of any kind in the record as to any other deposit, large or small, made to the account of Anna M. Neu.

The claim of Lester O. Neu to the bank account of his mother was originally based on two contradictory grounds, that is either that the money was a gift to him, which was alleged to have been made about April 4, 1957, or that it was his own money, deposited by him to her account. This controversy is entirely based on Lester O. Neu’s testimony. By opening statement, his counsel claimed the money both by gift and by ownership. On this question, Lester O. Neu testified as follows as to his visit to his mother at the rest home on or about April 3, 1957:

“Q. Now, Mr. Neu, how about the first, second or third of April, 1957, what, if any, conversation took place between you and your mother, Anna Neu in the rest home as regards this account?
"MR. JONES: Objection.
“THE COURT: Overruled, he may state it.
"Q. Explain it to the Court.
“Av She called to see her bank books, one from Cleveland Trust and the one from Society for Savings, the next time I come out, and I did so, and I opened the package and showed her what she had. She said it was my money and that I could have it and that is the way she wanted it.
“Q. What, if anything, did she do at this time, if anything; I mean, just what happened? Explain it.
“A. I took the bank books from under the rug in the bedroom, that is where she kept them, and took them to the rest home. I opened them up, explained how much money she had in these two accounts. She told me she wanted me to have the money and I took the bank books with me back to withdraw the money.
“Q. She told you she wanted you to have the money?
“A. That is correct.”
And at the bank, on April 4, 1957, he testified:
“Q. What, if anything, did you do there?
“A. I needed the gift of it. I didn’t want to draw all of this money of $9,000. I asked him where I had to go to turn this gift money over into my account and he directed me to the main floor, clean aside across the main floor of the building into a railing there and I went to this desk here to this man and he took care of it.
“Q. And this man that you went to, did you explain to him why you were there?
“A. Yes, sir.
“Q. Well, what did you say then?
“A. I explained it, that this money was to go to me as a gift.” He further testified:
“Q. And she told you, according to your testimony, that that money in that account in her name at the Society for Savings she wanted to give to you, is that right?
“A. Yes, sir, correct.
“Q. And what did you say to that?
“A. Well, naturally, it was all right with me.
“Q. All right. So, at that time, Mr. Neu, you considered those funds to be your mother’s right?
“A. I wouldn’t say that, no, the bank — my money there was banked in my bank account and it shows—
“Q. In other words, your mother was giving you your own money, is that what you are saying here?
“A. That is correct.”
“Q. No, excuse me, I meant the $9,400. What did you withdraw the $9,400 for at that time?
“A. That was a gift.
“Q. But you testified a minute ago that it was your money?
“A. That is right.
“Q. Then why didn’t you withdraw it before April 4, 1957?
“A. Should I explain it?
“MR. BRADY: Explain it. He is asking for it. Explain it.
“A. All right, I was disqualified in the Army as having chronic asthma, I have that slip.
“THE COURT: Talk slower, please.
“MR. BRADY: Talk slower.
“A. I was disqualified in the Army in ’42 with chronic asthma, and I have a sore throat now, you will have to pardon me, I had no life insurance whatsoever, no automobile insurance whatsoever, and a mortgage on the house, and if anything happened to my funds, I figured I would lose it all, and I didn’t want to be in that financial straits.
“Q. You said you would lose it all. Now, I just don’t follow that, Mr. Neu. Can you elaborate on that a little?
“A. Well, like I said, I was severely sick, I had no life insurance, not to this day. Now, of course, I have automobile insurance, I—
“Q. When were you discharged from the Army?
“A. I was 4-F to begin with in ’42.
“Q. Well, you had all of those problems from 1942 to 1957, didn’t you; you had the same problems then that you had on April 4,1957, didn’t you?
“A. Well, yes.
“Q. Well, then why didn’t you withdraw the money shortly after 1942; why did you wait until 1957?
“A. It was still safely — if I had an accident or anything at all, death, anything, the money I figured was mine there, lying there, it was safe there.”

The trial court in its conclusions of law did not mention the subject of gift. Nor was there any finding of fact or law on the issue of the mental capacity of the decedent at the time it was claimed a gift was made, that is, at or about April 2, 1957, although evidence on this question was presented by both parties as shown by the record.

For the reason that the trial court did not find a lawful gift of the money in the account to him as claimed by Lester O. Neu, we confine our consideration of the errors claimed with respect to whether the money in the bank account of the decedent was that of Lester O. Neu, or, if not, whether the power to draw from her account, granted to Lester O. Neu, by his mother on August 3, 1945, gave him a joint ownership or title to the money in the account or to such as he should actually withdraw by reason of such authority. On these questions, the trial court’s findings of fact are not sustained by sufficient evidence.

The finding of fact by the trial court that: “No agency or third party beneficiary relationships can be determined from the contract,” is. a conclusion of law and not a finding of fact and the finding that: “There was consideration for this contract since Lester O. Neu caused Anna M. Neu’s name to be added to passbook No. 508732, at the same time under the same circumstances” is not supported by evidence since Anna M Neu’s right to withdraw from Lester O. Neu’s account was contracted for in 1922 when the account was opened and the only change since that time was the fact that Lester O. Neu’s signature was placed on the card February 11, 1937, so that he could withdraw from his own account.

The conclusions of law are as follows:

“The Court draws the following conclusions of law in the instant case:
“That it has jurisdiction herein.
“That the complaint must be sustained by the preponderance of the evidence.
“The Court finds that the contract (exhibit, ‘5’) with the Society for Savings Bank, in the City of Cleveland, by its terms, creates a joint account, insofar as, withdrawals may be made by either party, at any time and in any amount.
“That the contract (exhibit, ‘5’) is not ambiguous, does not create an agency or a third party beneficiary, and that there is legal consideration for said contract.
“That there was no interest in the funds, in decedent’s name at the time of her death.
“The Court finds that defendant did not conceal, embezzle, or convey away, or had in his possession any of the decedent’s funds.
“The Court, therefore, finds the complaint is not sustained by sufficient evidence, and must be dismissed.”

The finding or conclusion of law that the authority signed by the decedent authorizing Lester O. Neu to withdraw from the account creates a joint account insofar as withdrawals made by either party at any time and in any amount cannot be sustained. The authorization of another to draw from one’s account without more does not transfer title to the money therein or to money withdrawn under the authority given. The purpose of granting the privilege to withdraw funds from another’s bank account must be established to determine its effect on the title or right to the money. So far as this record is concerned, there is no evidence on that subject other than the written authorization quoted above. There is not a word in the record that Mrs. Neu said or did anything on. August 3, 1945 except sign the withdrawal authority. The record, therefore, does not disclose a purpose to make a gift or create a joint ownership of the account and a joint and survivorship account was, therefore, not created by the language of the contract granting authority to withdraw from the account. While the owner of the account made it possible for and did consent to Lester O. Neu taking possession of monies in the account, the missing element to the claim of joint ownership by Lester O. Neu to such monies is the lack of an expressed donative intent by the decedent when such authority was given.

In Brown on Personal Property, the rule stated that the making of a deposit of funds in a bank in the name of another, without expressing donative intent, does not create a gift, is based on the same principle that is applicable here. In paragraph 63, page 211 of the Second Edition (1955), in considering the question on the authority of Beaver v. Beaver, 117 N. Y. 421, 22 N. E. 940, the author says:

“The mere deposit of funds to the credit of another does not, however, standing alone, prove a gift. According to a leading New York case, ‘We cannot close our eyes to the well-known practice of persons depositing in savings banks money to the credit of real or fictitious persons, with no intention of divesting themselves of ownership. It is attributable to various reasons; reasons connected with taxation: rules of the bank limiting the amount which any one individual may keep on deposit; the desire to obtain high rates of interest where there is discrimination based on the amount of deposits, and the desire, on the part of many persons, to veil or conceal from others knowledge of their pecupiary condition. In most cases where a deposit of this character is made as a gift, there are contemporaneous facts or subsequent declarations by which the intention can be established, independently of the form of the deposit. We are inclined to think that to infer a gift from the form of the deposit alone would, in the great majority of cases, and especially where the deposit was of any considerable amount, impute an intention which never existed and defeat the real purpose of the depositor.
“Accordingly, when it satisfactorily appears that the form of the account was not due to a donative intent on the part of the depositor but to some of the reasons mentioned by the New York court, the gift fails for lack of a proper intent. * * *”

In the case of Bender v. Cleveland Trust Co., 123 Oh St 588, 176 N. E. 452, it was difficult for David Bender to travel to the bank, and for his convenience, an arrangement was made for his wife to withdraw funds from his bank account. The notation on the account was “Either May Draw.” There was a clear presumption to be deduced from the provisions of the will of Bender that a gift was not intended. The court, in holding the money was that of the husband’s estate, although the wife had drawn out the funds before his death, said on page 594:

“It must be concluded that there was no gift, for the reason that the evidence fails to disclose a delivery coupled with the intention to pass the property as a gift. Although the cases are not in accord, the weight, of authority supports the view above indicated. The more recent cases involving this question-are fully annotated in 48 A. L. R., 189.”

Also in the case of Bauman v. Walter, 160 Oh St 273, 116 N. E. 2d 435, money of the wife was deposited in two bank accounts, one a savings account, the other a commercial account. Both names were placed on the accounts, i. e., Mr. or Mrs. Edwin M. Walter, on the savings account, and Celia A. Walter or Edwin Walter on the checking account. The wife was killed by the husband before any of the money was withdrawn. The husband being disqualified from the right to inherit from his wife (§2105.19 R. C.) contested the right to the money with the father of the deceased, her only next of kin, on the basis that the deposit made in both names gave him an interest in the money. The court said, beginning on page 275:

“The husband certainly cannot claim that anything was transferred to him for a valuable consideration. Nothing in the record supports a conclusion that the husband incurred any detriment or that there was any bargain under which the wife was to receive any benefit from the husband which could represent such a consideration. Likewise there was no transfer in the requisite form to constitute a valid bequest. Furthermore, since the wife until her death retained a complete power to withdraw all or any part of the money deposited in the account, there was apparently no relinquishment by the wife of dominion and control over the money deposited or over the obligation of the bank to pay back to her the whole amount of that money. It does not appear that the wife had relinquished such dominion and control over the deposits by delivery to the husband of any passbooks, the presentation of which would be necessary to effect withdrawals. Cf. Polley et al,, Admrs., v. Hicks, 58 Oh St 218, 50 N. E., 809, 41 L. R. A., 858. Hence, an essential element of a gift or assignment without consideration was lacking. See Gano v. Fisk, 43 Oh St 462, 3 N. E. 532, 54 Am. Rep., 819, and Flanders v. Blandy, 45 Oh St 108, 12 N. E. 321. As hereinbefore observed, these deposits were not payable to the wife and the husband but were payable to the wife or the husband. In the former instance, it would be arguable that neither the husband nor the wife could withdraw funds without the concurrence of the other and that, therefore, the wife would have relinquished at least part of her dominion and control over the deposits. Cf. In re Estate of Hutchison, 120 Oh St 542, 166 N. E. 687.”

In the case of Union Properties Co. v. The Cleveland Trust Co., 152 Oh St 430, 89 N. E. 2d 638, John and Needa Allen, husband and wife, were the contracting parties with the Cleveland Trust Company with respect to a savings account, payable to the order of either or the survivor of them. The Union Properties Company owned a judgment against John Allen and attempted by an execution proceeding to subject the account to the payment of the judgment. Evidence was introduced that in spite of the form in which the deposit was made, the money, in fact, was the property of Needa Allen. The court held in paragraph two of the syllabus:

“2. The money in such account is not subject to appropriation by the husband’s judgment creditor, where it is found upon evidence of sufficient probative force that notwithstanding the form of the deposit the money is in reality the sole property of the wife.”

The rule to be gotten from the cases is that the names in which bank deposits are entered on the records of the bank or the names authorized by contract with the bank to withdraw funds from bank accounts of others are not conclusive as to the true ownership of such accounts or the interest therein. Under our law, the relationship between the bank and the depositor is that of debtor and creditor and the ownership of the credit due from the bank is subject to the same rule as is to be applied to any other personal property. Possession alone or the bare right to withdraw funds is not decisive of the question.

Sec. 1105.09 R. C., provides:

“When a deposit is made, in any bank or trust company transacting business in this state, in the name of two or more persons, payable to either or the survivor, such deposit or any part thereof, or any interest or dividend thereon, may be paid to either of said persons, whether the other is living or not, and the receipt or acquittance of the person paid is a sufficient release and discharge of the bank for any payments so made.”

The foregoing section is a part of the Banking Code of Ohio and was enacted for the protection of the bank in disbursing funds held in accounts deposited in the names of two or more persons and made payable to either or the survivor. Under such a contract, the bank is protected by the section quoted in paying out to any of the persons named, however, the right to the property on the part of any of those named in the account, unless the contract and surrounding circumstances can be interpreted otherwise, must be established by evidence beyond or outside the terms of the contract with the bank.

In the case of Cleveland Trust Co. v. Scobie, 114 Oh St 241, 151 N. E. 373, the court held in the syllabus:

“Where a person opens a savings account in a bank to the joint credit of himself and another, payable to either, and balance at death of either payable to survivor, the authority to remain in full force until receipt by the bank from the depositor of written notice of its revocation, and the record shows that the depositor intended to transfer to the person to whom he made the account jointly payable a present joint interest therein equal to his own, and the passbook has been left in the possession of the bank for withdrawals by either party on the joint account, a joint interest is created in the right of the depositor in the deposit, and the person to whom the deposit is made payable jointly with the depositor, upon the death of the depositor, without his having revoked the authority to draw, is entitled to the balance of the account.”

In the Scobie case, the intention of the owner of the account to pass a present joint interest in the account was supported by letters clearly setting out the grantor’s purposes. The question of the ownership of the monies in a bank account is always a question of fact.

In the instant case, it is absolutely certain that when the account was opened, it was the property of Anna M. Neu. Her continued exclusive possession of the passbook during the thirty-five years the account remained active was, at least, some evidence of her ownership in the funds deposited in the account. The authority granted Lester O. Neu on August 3, 1945, was limited to the right to draw from the account. It did not create joint ownership or survivorship rights in the money. Standing alone, and without evidence to support a different intention, the authorization designated him an agent of the owner with power to draw on the account. One’s property in a bank account, as has been suggested, may be dealt with as the owner of such property desires. He may make a gift of it by complying with the essential requirements of a gift by expressing an intent to give, followed by complete surrender of all dominion over the property to the donee. He may, by contract, create a joint and survivorship right to the money in another or others, or he may sell a part or all of the account to another. We hold that the authority granted Lester O. Neu to draw from his mother’s account did not create in him a joint ownership of the account and he had no right to the money deposited based on his authority to draw.

It is possible for one to deposit his funds in the bank account of another and by affirmative proof, thereafter establish his proportionate share or interest therein. When, under such circumstances, a provision granting such depositor the power to withdraw funds in another’s account in which he has deposited his own money is contracted for with the bank, he may withdraw his funds at will. Here Lester O. Neu makes the claim that the money deposited in the account of Anna M. Neu was his money.

If it can be said that the court in its conclusions of fact and law determined that all of the money in the savings account of Anna M. Neu was, in fact, the money of Lester O. Neu, having been deposited therein as his money, then such conclusions are clearly against the manifest weight of the evidence. Many circumstances need to be considered in determining this question. As has already been suggested, there is no basis in the record for the claim that the money in her account prior to August 3, 1945 belonged to or was the property of any other person than Anna M. Neu. The conclusion that the money then and thereafter deposited was his, if such fact was so determined by the court, must be based on the testimony of Lester O. Neu which has been almost completely quoted above. Aside from his unsupported statements that the money was his and that his mother had no source of income except for the money he gave her, there are here many circumstances that could be found to have a direct bearing on the defendant’s claim that the money in Anna M. Neu’s account was the defendant’s money. Such claims should have some support by showing his ability to accumulate above living costs some nineteen thousand dollars during a fifteen year period (one-half of which was in his own bank account) without evidence of continuous employment and the amount realized from wages, the net amount of his rental income and other surrounding circumstances such as his own bank account in which deposits were made during this period.

The finding of the trial court that all the money in the savings account of Anna M. Neu was, in fact, the money of Lester O. Neu, is reversed as against the manifest weight of the evidence.

Some claim is made that evidence presented by the administrator was improperly received. The administrator, at the beginning of the case, called Lester O. Neu to give testimony relevant to the issues in the case. He did not declare when the witness was called that he was calling him foe cross-examination. As a part of his testimony, he denied having told the undertaker employed by the family to attend to his mother’s funeral, that “when my mother became incompetent, I withdrew all her money from the bank.” The defendant denied making-such statement. The undertaker was called and testified, over the objection of the defendant, based on the grounds that the administrator could not impeach his own witness, that Lester O. Neu said to him “his mother had become incompetent and he had appropriated her finances.” The court ultimately permitted the administrator to recall Lester O. Neu for cross-examination on this subject and thereafter permitted the undertaker to testify as to what Lester O. Neu told him about his. mother’s incompetence and his withdrawal of the money. While the ultimate admission of the evidence ended any claim of error, we desire only to comment that a proceeding under §2109.50 R. C., is inquisitorial in character and the witnesses called are, in effect, witnesses of the court. In In re Estate of Black, 145 Oh St 405, 62 N. E. 2d 90, the court’s ruling that the administrator was not estopped from presenting the undertaker’s testimony was not prejudicial to the rights of the defendant.

This court, having concluded that the claim of a gift made to Lester O. Neu to the funds in the bank account of Anna M. Neu at the Society for Savings Bank on April 2, 1957, as asserted by Lester O. Neu, is not before us and having further concluded from the record that the contract of Anna M. Neu with the bank, entered into August 3, 1945, authorizing Lester O. Neu to withdraw funds from the -account without other evidence to support such claim, did not transfer to him a joint interest therein and having further found that the court’s judgment that all the money in the account was, in fact, the money of Lester O. Neu is against the manifest weight of the evidence, the cause is remanded for a retrial of all issues of fact originally presented to the Probate Court for determination.

HURD and KOVACHY, JJ, concur.


source: Caselaw Access Project

author: By FESS, J.

license: Public Domain

text:
    ALLIANCE FIRST NATIONAL BANK, Appellee, v. MAUS, Exrx. et, Appellants, MORRIS, Appellee.
    Ohio Appeals, Fifth District, Stark County.
    No. 2632.
    Decided May 17, 1957.
    John L. Russell, for plaintiff-appellee.
    F. E. Hunter, for defendants-appellants.
    Evan W. Morris, for defendant-appellee.
    (FESS, J, of the Sixth District, sitting by designation in the Fifth District.)
   OPINION

By FESS, J.

Appellants have filed a petition herein to vacate a judgment entered by this Court on September 6, 1955, on the ground that said judgment was obtained “in whole or in material part by reason of mistake, neglect or omission and irregularity in the proceeding of the Court which deprived these defendants-appellants of due process of law.” Petitions pray that the judgment be set aside and that the cause be placed on the active trial list.

Defendants-appellants appealed to this Court on questions of law and fact from a judgment entered by the Common Pleas Court on April 9, 1954. The appeal was heard on February 3, 1955 and on February 21, 1955 this Court rendered an opinion written by Judge McClintock, finding against the contentions of the appellants. (100 Oh Ap 433.) Judge Montgomery concurred in the opinion and judgment. Judge Putnam concurred in the judgment.

On August 15, 1955 appellants’ motion to reopen the case for introduction of new evidence was overruled. On September 6, 1955 the judgment was journalized and mandate thereon filed in the Common Pleas Court. On September 22, 1955 motion for a new trial was overruled. On November 25, 1955 a motion for rehearing was denied and an application for rehearing on the motion for new trial was overruled. On March 28, 1956 a motion to certify was overuled by the Supreme Court.

On May 1, 1956 appellants filed a further motion to vacate its former judgment herein, under §§2325.01 and 2325.04 E. C., for mistake, neglect, or omission of the Clerk or irregularity in obtaining the judgment, and for a rehearing. On May 31, 1956 this motion to vacate for rehearing was denied. In support of this motion plaintiff asserted that the writer of the opinion either did not read the record and certain exhibits, or ignored such testimony.

The claimed irregularity incident to the present motion to vacate the same judgment is not specified in the motion, but it seems to be the contention that the writer of the opinion was the only member of this Court who reviewed the transcript of the proceedings before the Common Pleas Court. The insinuation that the individual members of this Court did not perform their duty incident to the determination of this appeal is not to be ignored, but, if tenable, such contention raises a matter for review by way of error proceedings. Nevertheless, the two remaining members of this Court who reviewed the appeal take judicial notice that each of the three members of this Court reviewed the record and briefs and concurred in the judgment.

There comes a time when vexatious litigation should terminate. The asserted irregularity in obtaining the judgment is not such an irregularity as is contemplated in §2325.01 (C) R. C., as a predicate to support vacation of a judgment after term.

Appellants’ motion to refer the petition to vacate to a Referee for the purpose of taking testimony is denied and the petition is dismissed at appellants’ costs.

McCLINTOCK, PJ, PUTNAM, J, concur.


author: By HUNSICKER, PJ.

text:
    FAZEKAS, Plaintiff-Appellant, v. GOBOZY, Exr. et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24412.
    Decided April 9, 1958.

      Henry L. Haner, for plaintiff-appellant.
    Ellis V. Rippner, Stephen Gobozy, for defendants-appellees, Stephen Gobozy, Exr. and Trustee, etc. and Susie Buban.
    Bart Farina and Leanza, Bernard & Longano, for defendants-appellees, Gabor Buban and Frank Buban.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, and HORNBECK, J, of the Second District, sitting by designation in the Eighth District.)
   OPINION

By HUNSICKER, PJ.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Cuyahoga County, Ohio.

The judgment which gives rise to this appeal is as follows:

“t • * Tile jury jn ^his action having on the 23rd day of October, 1957, returned a verdict finding that the paper writing described in the petition produced at the trial of this cause, purporting to be the last will and testament of said Gabor Buban, deceased, is the last will and testament of said Gabor Buban, deceased; therefore it is considered and determined that the paper writing described in the petition and produced at the trial of this cause is the last will and testament of said Gabor Buban, deceased. * * *”

No answer was filed in the original action to contest the will of Gabor Buban, deceased.

When the case was called for trial, and before the impanelling of a jury, certain stipulations were made by counsel for the opponent and counsel for the proponents of the will. These stipulations were made so that a motion to direct a judgment for the opponent of the will could be presented to the trial judge. This motion was overruled, and exceptions were then taken to such ruling. Thereupon, a panel of prospective jurors was called, and the following statement was made by the trial judge to the prospective jurors:

“The Court: Ladies and Gentlemen, it is necessary that I ask you a few questions and thereafter each of the counsel will ask you a few questions for the purpose, not of prying into your personal affairs but attempting to determine whether or not they feel that you can serve as a fair and impartial juror in this case. Each side wants a fair trial a'-'d. they want jurors who have no prejudice or bias or favor on either side.
“Now, we have a new statute in Ohio with respect to swearing juries; you have probably read about it; so each of you will stand.”

The prospective jurors were then sworn, and the trial judge said that this was a will contest action brought by Frank Fazekas against Stephen Gobozy, the executor of such will. He then proceeded to name the other defendants and their counsel. The trial judge then said to the prospective jury:

“This is a will contest action and the question at issue is whether or not this is the last will and testament of the decedent.”

The bill of exceptions then says:

“Thereupon the impanellment of the jury continued, and in due course a jury was impanelled and sworn.”

The case proceeded to trial in the regular manner during the remainder of that day — to wit, Friday, October 18, 1957. Then the trial began again on Monday, October 21, 1957, at 1:30 o’clock, p. m., at which time, after some discussion by counsel and the trial judge, the following journal entry was ordered to be placed on the record in this case:

“This cause came on for trial and it appearing to the court that no answer has been filed herein, it is ordered that the following issue of fact be submitted to and tried by the jury, to wit: ‘Is the writing produced the last will of Gabor Buban, deceased?’ And the Clerk is directed to enter this order on the journal in this cause.”

This entry was placed on the journal thereafter — to wit, on October 22, 1957.

The case then continued on Monday, October 21, by the presentation of the evidence until its conclusion. A verdict was returned in favor of the proponents of the will. The opponent of the will says that the judgment rendered on that verdict is prejudicially erroneous in many respects.

The chief matters of complaint, and those which we shall consider, are that:

(1) Stephen Gobozy, one of the defendants, and an appellee herein, is not a competent witness to the will of Gabor Buban, deceased, since he, as one of the two witnesses to such will, is named therein as executor of the will and trustee of the estate of the decedent. The opponent says that since Stephen Gobozy is not a competent witness, the purported will is not valid, because it then has but one competent witness to its execution.

(2) The trial court erred in failing to withdraw a juror and declaring a mistrial because such court did not (there being no answer to the petition to contest the will), prior to the impanelling of the jury, place on the journal the issue as prescribed by §2741.04 R. C.

Sec. 2107.03 R. C., says, in part, that a will shall be “attested and subscribed in the presence of such party (the testator), by'two or more competent witnesses * *

It is not denied herein that in all respects the will was properly executed if Stephen Gobozy is a competent witness.

There is nothing in the statutes on wills, except as may be contained in §2107.15 R. C., which determines under what circumstances a person is an incompetent witness to a will. The general sections on the competency of witnesses in a civil action are §2317.01 et seq, R. C. If these latter sections are to apply, we must say that Stephen Gobozy was a competent witness.

If, then, we examine §2107.15 R. C., which, in part, reads as follows—

“If a devise or bequest is made to a person who is a witness to a will and the will cannot be proved except by his testimony, the devise or bequest shall be void. The witness shall then be competent to testify to the execution of the will as if such devise or bequest had not been made.”—

we find that the devisee or legatee is not an incompetent witness; but if his testimony is necessary to prove the will, then the bequest or devise is void if it comes within the exclusion of the statute above.

If the fact that one who is named as an executor and trustee in a will has such an interest in the will that would disqualify such person from acting as one of the two necessary subscribing witnesses to the will, then the instrument in question in this case must be declared a nullity, and the judgment rendered by the trial court must be reversed, and final judgment rendered for the opponent herein.

We note that the statute describing the method of making a will, §2107.03 R. C., provides for “competent witnesses”; whereas, in an oral will, §2107.60 R. C., that type of will must be “reduced to writing and subscribed by two competent disinterested witnesses * * (Emphasis ours.)

The instrument before us is in writing, so we are not required to discuss the competency of witnesses to nuncupative or oral wills.

Under the common law, the general rule was that a person who had an interest in the outcome of a matter was not a competent witness. This was a rule founded on public policy. Cockley Milling Co. v. Bunn, Admx., 75 Oh St 270; Powell, Admx. v. Powell, Admx., 78 Oh St 331; 42 O. Jur., Witnesses, pg 129, Sec. 122, et seq.

With the abrogation of the common law rule, with respect to the competency of witnesses when called to testify in an action, interest was no longer a disqualifying factor. Age, capacity to correctly relate matters about which the witness testifies, and the status of the party testifying where the adverse party is deceased, are some of the qualifying matters for a witness who testifies in an action.

A witness to a will is required to give testimony in a manner similar to a witness in an action in court. The witness to a will is sworn and required to orally state the facts which transpired at the time of the execution of the will. In addition, the witness also subscribes to a written statement regarding such execution.

The general rule, as announced in cases in other jurisdictions, is that all persons are competent, as witnesses to a will, who are legally competent to be sworn and able to testify in a court of justice to the facts to which they attest in subscribing their names to the will. Ferguson v. Ferguson (Va.), 47 S. E. 2d 346; In re Mitchell’s Estate (Wash.), 249 P. 2d 385; Hayden v. Hayden (Neb.), 186 N. W. 972; 1 Page on Wills (Lifetime Ed.), Secs. 312 and 317, and authorities there cited.

We are not dealing herein with the devolution of the property in this estate. That is a matter within the jurisdiction of the Probate Court; however, §2107.15 R. C., supra, says, in effect, that one to whom a devise or bequest is made is not a competent witness, where the testimony of such person is necessary to sustain the will, except by declaring the devise or bequest void.

Stephen Gobozy was named executor of the will herein, and also trustee of the estate of the deceased as provided in such will. He has received compensation for his services in such capacities. Is this will a nullity because of such fact?

We do not think so. The general rule, followed in jurisdictions having statutes similar to Ohio, is that a witness-executor or witness-trustee is not an incompetent subscribing witness to a will by reason of such fact. 1 Page on Wills (Lifetime Ed.), Secs. 325 and 327; 94 C. J. S., Wills, Secs. 185 f, 185 g; 57 Am. Jur., Wills, Secs. 316 and 317.

We next consider the effect, in relation to the facts of this case, of §2741.04 R. C., which says, in part:

“In an action under §2741.01 R. C. (contest of will), an issue must be made up either by pleadings or an order on the journal, whether or not the writing produced is the last will * * * of the testator, which issue shall be tried by a jury.” (Emphasis ours.)

We have heretofore detailed the way in which the trial judge entered the order setting forth the issue as required by the statute. The pleadings in a case are not evidence to be considered by the jury during their deliberations. The practice in most trial courts is not to allow the pleadings to be taken to the jury room for inspection by the jury during their deliberations.

Although the case of Meyer v. Welsbacher et al, 80 Oh Ap 200, says that—

“1. In a will contest, it is the duty of the trial court, in the absence of an answer, to make up the issue prescribed by §12082 GC, by an order on the journal before the impaneling of a jury.”—

we do not find that any such time requirement is contained in the statute.

The order herein set out the issue, and such order was made prior to the conclusion of the trial. The issue was also orally given to the jury by the trial judge at the time they were impanelled.

We do not have before us the instructions given by the trial court. There is no complaint made concerning them. We therefore assume that the issue was properly made and given to the jury in such instructions.

We do not say that the time when the journal entry is filed, setting forth the issue, is not material; but where, as in this case, the entry setting forth the issue was dictated by the trial judge before the conclusion of the testimony, and then filed, and, at the time of impanelling the jury, such issue was given orally to the jury, we do not believe that this sequence of events amounted to error prejudicial to the substantial rights of the appellant herein.

It is therefore our conclusion in this case that Stephen Gobozy was a competent subscribing witness to the will of Gabor Buban, deceased; and that no prejudicial error intervened herein in the way in which the issue was made up.

The judgment in this case must be affirmed.

Judgment affirmed.

DOYLE and HORNBECK, JJ, concur.


author: By PHILLIPS, J. By NICHOLS, PJ.

text:
    STATE, ex rel. VASVARI, Plaintiff-Appellants, v. RICKERT et, Defendants-Appellees.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3929.
    Decided April 4, 1957.
    Robert J. Kalafut, Robert E. Tablack, Youngstown, for plaintiff-appellant.
    Thomas A. Beil, Pros. Atty., Harold Hull, Asst. Pros. Atty., for defendants-appellees.
   OPINION

By PHILLIPS, J.

Appellant incurred no personal expense but accepted a contribution of campaign cards costing $11.45 during his candidacy for election as Precinct Committeeman of the City of Struthers in the May Primary 1956. Appellant filed no expense account as required by §3517.11 R. C., because he believed “such action was unnecessary as he was not a candidate for public office.”

On January 14, 1957, appellant filed a petition for election to the office of Councilman at Large of the City of Struthers in the May Primary 1957.

The Board of Elections of Mahoning County notified appellant his petition was found insufficient by the Board of Elections of Mahoning County on the 8th day of February 1957 for not filing an expense account as a candidate for Precinct Committeeman in the primary election 1956, as required by §3517.11 R. C.

Appellant tendered his expense account for the May 1956 primary to the Board of Elections subsequent to the expiration of filing date therefore, which the Board of Elections refused to accept.

On hearing had on his protest filed with such board appellant again tendered his expense account for the May 1956 primary which the Board refused to accept a second time.

On February 18, 1957, appellant filed an action in mandamus against the Board of Elections to compel it to place his name on the ballot at the May Primary 1957.

The trial judge denied the writ and appellant appealed from that denial to this court on questions of law contending by assignment of errors, oral argument and brief that:—

“1. Said verdict is contrary to law in that:
“a. Relator was not a candidate for public office and statements of expenditures are required to be filed only by the candidates running for public office.
“b. Assuming relator did have to file an expenditure account, he may now file and tender such.”

Arguing his contentions by brief■ appellant contends:—

“7. As a general rule, statements are required to be filed only by candidates running for public office.
“8. Thus it has been held that filings need not be made by candidates for membership in party committees, to be elected at a primary election, for such persons are not candidates for public office.
“9. It is generally agreed that party committeemen do not become public officers by reason of the fact that they are elected at a statutory primary election, because the duties of a public office are in their nature public, that is, they involve in their performance the exercise of some portion of the sovereign power, whether great or small, in the performance of which all citizens, irrespective of party, are interested. Manifestly, membership in a political. committee belonging to one party or the other does not come within the above description of what constitutes public office, and the fact that the legislature undertakes by statute to regulate the election and conduct of political committees does not make the office a public one.”

In a word defendant’s position is:—

“Defendants do not contend that plaintiff could not have filed his expense account at the time that he did, but it is seriously contended that he could not abrogate and nullify the provision of §3513.05 R. C. (ninety day period for filing declaration of candidacy). The provisions of this statute are mandatory and a valid petition must be filed at least ninety days before the day of the primary election.”

Sec. 3513.05 R. C., provides inter alia as follows:—

“Each person desiring to become a candidate for a party nomination or for election to an office or position to be voted for at a primary election shall, not later than four p. m. of the ninetieth day before the day of such primary election, file a declaration of candidacy and petition and pay the fee required by §3513.10 R. C. * *

Sec. 3517.10 R. C., provides in part as follows:—

“Every candidate and campaign committee and every person, association, or group of persons, incorporated or unincorporated, who contributed promised to contribute, received, or expended, directly or indirectly, any money or things of value in connection with the nomination or election of any candidate at any election held in this state shall, not later than four p. m. of the thirtieth day after such election, file a full, true, and itemized statement, subscribed and sworn to before an officer authorized to administer oaths, setting forth in detail the moneys or things of value so contributed, promised, received, or expended, the names of the persons from whom received and to whom paid, and the object or purpose for which expended. * *

Sec. 3517.11, R. C., provides:—

“Failure of any candidate to file a statement of expenditures shall disqualify said person from becoming a candidate in any future election for a period of five years.”

It is undenied that appellant was a person and was a candidate for election as a Democratic precinct committeeman at the Democratic Primary in 1956; that he received a contribution of campaign cards, things of value; that he failed to file a full, true and itemized statement —setting forth in detail the moneys or things of value received by him and “the names of the persons from whom received” “in connection with the election” as precinct committeeman “not later than four p. m. of the thirtieth day after such election.”

We concur in defendants’ contention that not having filed his expense account in question the petition plaintiff attempted to file was not a valid petition, which determines this case adversely to appellant.

Notwithstanding that decision we proceed to consider and dispose of the question raised by appellee whether this court can issue a writ of mandamus to plaintiff against defendant board upon the facts stated where the board construed and applied the applicable law with “its natural and fundamental meaning,” and answer that question affirmatively for appellee. See State, ex rel. Burgstaller v. Franklin County Board of Elections, 149 Oh St 193.

Apparently the determination of the board is final as to whether plaintiff had complied fully with the applicable law. See State, ex rel. Lemert v. Board of Elections of Muskingum County, 149 Oh St 211.

Plaintiff was not entitled to notice and hearing. He was challenging the action of defendant board in rejecting his nomination paper for his failure to comply with §3517.11 R. C.

In the case of State, ex rel. McGinley v. Bliss, et al, Board of Elections of Summit County, 149 Oh St 329, the supreme court held that a hearing and notice were not necessary unless the protest was against plaintiff’s candidacy.

In the absence of fraud or bad faith, the courts may not override a finding of a' board of elections, having jurisdiction of the subject matter, to the effect that a declaration of candidacy and petition of a candidate for nomination to a public office is valid, where no protest against such declaration and petition was filed with such board within the time required by statute. See Pierce v. Brushart, et al, Board of Elections of Scioto County, 153 Oh St 372.

In the absence of the specific claim that the board of elections has been guilty of fraud or bad faith an elector who desires to challenge the candidacy of a person for the nomination of his party must avail himself of his statutory remedies before the board of elections instead of resorting in the first instance to a court. See Marlin v. Board of Elections, 68 Abs 539.

Writ denied properly by the trial judge, and his judgment is affirmed.

NICHOLS, PJ, GRIFFITH, J, concur.

By NICHOLS, PJ.

Without concurring in the foregoing opinion I concur in the judgment since I find no mandatory duty imposed upon the Board of Elections to comply with the prayer of plaintiff’s petition. Hence mandamus does not lie.


author: By WALCUTT, J.

text:
    KARL, Estate of, In re: THOMPSON, Plaintiff, v. THOMPSON et, Defendants.
    Probate Court, Franklin County.
    No. 161355.
    Decided October 20, 1955.

      Thomas A. White, for executrix and plaintiff.
    Elwood L. Carpenter, Richard C. Addison, Columbus, for defendant, Hattie E. Price.
    Forrest R. Dietrich, Frank A. Koenig, Worthington.
   OPINION

By WALCUTT, J.

Elizabeth Thompson died testate on August 28, 1954, in this County. Her will was duly admitted to probate and the plaintiff qualified as executrix. She gave, devised and bequeathed her property to her daughter, Hattie E. Price, and her son, Louis M. Thompson.

The executrix filed herein her petition for construction of the will, requesting the Court to give her direction on the following matters.

1. Did the testatrix intend to devise her real estate so that both residence properties located therein would be included in the part devised to her son, Louis M. Thompson, or did the testatrix intend to include in the 31 acres devised to her daughter, Hattie E. Price, the residence formerly occupied by her and presently occupied by said daughter?

2. Should the court determine that it was the intention of the testatrix to include in the 31 acres devised to her daughter, Hattie E. Price, the residence presently occupied by said daughter, in what manner should the executrix proceed to make such division?

The portions of the will pertinent to these inquires are contained in Item II and Item III thereof, which are as follows:

Item II. As my daughter Hattie E. Price, and her family now live in my home property with me, and as my said daughter has promised to continue to live with me and give me such care and attention as I may require for the rest of my life, I give, devise and bequeath to my said daughter, Hattie E. Price, thirty-one (31) acres of land, together with all buildings thereon, off the south end of my farm of about 59 acres now owned and occupied by me, and I desire that the north line of said 31 acres so devised to my daughter shall be a line parallel with the south line of my said farm, and far enough north from the south line to contain thirty-one (31) acres of land.

I also give and bequeath to my said daughter any and all household goods and any and all chickens which I may own at the time of my death.

ITEM III. As my son, Louis M. Thompson, now resides in the buildings on the north end of my said farm, I give and devise to my said son, Louis M. Thompson, the entire balance and remainder of my farm, comprising twenty-eight (28) acres, more or less, which remains after the thirty-one acres devised to my said daughter under Item II of this will.

I also give and bequeath to my said son any and all live stock, farm implements, growing crops and any and all hay, corn or other feed which I may own at the time of my death.

The matter is submitted upon the statements made on behalf of the parties, the evidence, and the briefs of counsel.

The parties stipulate that the survey submitted to the Court, which was made when the executrix was ready to convey the real estate to the devisees, shows the division of the property made by the surveyor and the location of the buildings on each tract shown by it.

Counsel for defendant, Louis M. Thompson, objected to the taking of any testimony for the reason that, where a will contains no ambiguity, latent or patent, and can be carried into effect without the aid of extraneous evidence, such evidence is not admissible to show the intention of the testator, or to give the language a meaning different from that which is expressed. The testimony was taken subject to the objection and exception of the defendant, Louis M. Thompson, which was seasonably made, and renewed.

The first matter to be determined is whether the objection of defendant, Louis M. Thompson, to the introduction of any evidence herein is well taken.

The question of the admissibility of extraneous evidence in cases of this type is a difficult one. As stated in 94 A. L. R., p. 29.

The courts and writers who have made anything like a thorough examination of the subject have been impressed with its great difficulty and with the “painful vacillation and uncertainty which have marked the course of the decisions.” Gilliam v. Chancellor (1870) 43 Miss. 437, 5 Am Rep. 498. “Upon this subject . . . there seems to be a wonderful contrariety of judicial opinion, and in many respects it is difficult to say what is the estabqlished rule.” Holmes v. Holmes (1864) 36 Vt. 525.

“Perhaps the most difficult branch of the law of evidence is that which regulates the admissibility of extrinsic parol testimony to. affect written instruments,” says Judge Taylor in his work on Evidence, 8th ed. Sec. 1128. “Few things are darker than this, or fuller of subtle difficulties.” Thayer, Preliminary Treatis on Evidence, p. 390. The present writer wholeheartedly approves the statement of Turley, J., in Weatherhead v. Sewell (1848) 9 Humph. (Tenn) 272, that, the cases on this subject are often “contradictory in their principles, and it is exceedingly difficult to arrange and harmonize them.”

The general rule in connection with wills is stated in Page on Wills, Vol. 4. Sec. 1617, p. 622:

Since both wills and testaments are required to be in writing, no part of either can be created by oral statement. As we have seen, the intention of the testator is always to be deduced from the words actually written in the will. In determining the testator’s intention, the true purpose of the inquiry is to ascertain not what he meant to express apart from the language used, but what the words he has used do express. Accordingly, when there is no dispute as to what words were written in the will, it is a fundamental principle that extrinsic evidence can not be received to show that the testator intended something outside of, and independent of, such written words, to add words to those in the will, to contradict its language, or to take words away from those in the will, even though the court may believe that the actual disposition of the testator’s property which results through changing circumstances was not contemplated by him.

However, the author goes on to state:

The Courts sometimes go farther, and say that extrinsic evidence is inadmissible to explain or to vary the unambiguous terms of a written will. Statements of this sort are misleading. The meaning and application of the terms of the will can not be understood until the property and beneficiaries have been identified, which can be done only by extrinsic evidence; and, in many instances, until the court understands testator’s situation with reference to his property, the natural objects of his bounty, and his contemplated beneficiaries. Evidence of this sort explains the meaning of the will; and, not infrequently, this meaning is varied to the extent that the will evidently means something different, when read in the light of admissible extrinsic evidence, from the meaning which it appeared to have without such evidence.

As to the admissibility of extrinsic evidence where the will is ambiguous Page further states (p. 628):

The question of admissibility of parol evidence, therefore is generally raised where the will, either upon its face, or by reason of imperfect description of the subject-matter of the gift or the object of testator’s bounty, is ambiguous or uncertain. It is often stated, as a general principle, that evidence of extrinsic circumstances is admissible to aid in interpreting a will which is ambiguous. This rule is so general as to be of little value since questions as to what constitutes such an ambiguity as to require consideration of extrinsic evidence in order to ascertain the testator’s intent are almost as numerous as the variations which can be conceived for testamentary dispositions. As previously pointed out, the mere statement of such a general rule is also somewhat confusing, because in many cases the ambiguity does not appear until extrinsic evidence is received; some courts holding that it is only in such cases that extrinsic evidence can be considered in the construction of the will.

The intent of the testator must be gathered from all of the provisions of the will.

The intention of the testator is to be gathered from the whole will, that is, from all of the provisions, — including codicils, if any — considered in the light of every other provision, as an entirety. The construction given to any part of the will should conform to its general scope and purpose, each of the parts being construed with the others to make a consistent whole. * * * As is sometimes expressed, the intent is to be ascertained from a full view of everything within the “four corners of the instrument” in light of the circumstances surrounding the testator at the time of the execution of the will. In this respect what the testator has said, as well as what he has forborne to say, should be ascertained. 41 O. Jur., 600, Sec. 469.

In case of ambiguity or uncertainty in any provision thereof, the entire will is considered, and, if consistent, each and all of the provisions thereof are to be given full effect. Words deliberately used in a will are presumed to have been placed there for a purpose and can. not arbitrarily be ignored; they must be given a meaning to the effect the intention of the testator, if such intention can be ascertained and no rule of law violated. Therefore, if a clause of a will or codicil is susceptible of two constructions, one of which is in harmony with the remaining provisions and the other at variance therewith, the court will, of course, assume that the correction is one which will harmonize with the various provisions and will sustain the seemingly natural disposition of testator’s property as disclosed by the language used, and as gleaned by all the circumstances and surroundings of the testator at the time of the making of the will or the codicil. 41 O. Jur., 605, Sec. 470.

It is frequently said that on the matter of the introduction of extraneous evidence there is a distinction between latent and patent ambiguities. 41 O. Jur. 612, Sec. 480:

The general principle is firmly established in Ohio, and generally, that extrinsic evidence is admissible, where there is a latent ambiguity arising out of extrinsic circumstances, to resolve the ambiguity and aid in the interpretation or application of the will. As a latent ambiguity is only disclosed by extrinsic evidence, it may be removed by such evidence.

The rule, as sometimes stated, that extrinsic evidence is not admissible where the will contains no ambiguity does not mean that evidence of extrinsic circumstances may never be introduced where the will, on its face, contains no ambiguity. Indeed, this manner of stating the rule begs the question, for it can not be determined whether or not the will does contain a latent ambiguity until extrinsic evidence has been introduced. Some extrinsic evidence is necessary in every case to identify the persons and property referred to in the will and to enable the court to apply the words of the will to the matters to which it relates.

As a part of Item II of the will, the testatrix says:

And I desire that the north line of said thirty-one acres so devised to my daughter shall be a line parallel with the south line of said farm, and far enough north to contain thirty-one acres of land.

This is what is called a precatory provision. In Fenn, et al., v. Vott, 11 Abs 625, Washburn, J., in commenting upon precatory provisions in a case where it was sought to establish a trust by such language, said:

In early times the rule in England was that a request in a will was considered prima facie imperative; but the modern rule in England and most of the states is that a mere request does not import a command; the test in every case is whether the intention of the testator is manifest and mandatory in favor of the object of his bounty, or is merely suggestive and advisory to the first taker.

In determining whether the language used in this will was the expression of the mere wish or was in the nature of an imperative direction or command to do a certain thing, we must necessarily take into consideration the circumstances existing at the time the language was used. * * *

In this case it is clear that the provision, “and I desire that the north line of said thirty-one acres,” etc., was a mere expression of wish on the part of the testatrix and should not defeat her obvious intent.

In Item II of the will the testatrix is careful to insert the provision:

As my daughter, Hattie E. Price, and her family now live in my home property with me, and as my said daughter has promised to continue to live with me and give me such care and attention as I may require for the rest of my life, I give, devise and bequeath, etc.

In Item III, she says with equal clearness:

As my son, Louis M. Thompson, now resides in the buildings on the north end of my said farm, I give and devise to my said son, etc.

These provisions could not have been meaningless in the will, and they must be given consideration in determining decedent’s intention.

The evidence developed in the case shows that Mrs. Price and her family did live in the home with testatrix for many years, did care for her during all of that time and during her last illness with cancer, from which she eventually died, and did care for the mother as stated in the will. The evidence further shows that the son, by his own admission, did not care for his mother except for some occasional assistance, particularly toward the end of her life.

It is further clear from the testimony adduced that the house on the north part of the premises, which had been the residence of the son for thirty or more years, had been built by him, but that the mother paid at least one-half or more of the cost of such home, and the son says, “She told me that if I’d build up there, she’d give me the two acres. But she never give me no deed for it. She said, ‘A deed I ain’t going to give to no one,’ so that is it.”

It is clear from evidence presented that testatrix on repeated occasions admitted her obligation to her daughter and had said that the property in which they lived together was to be her daughter’s property on her death.

The son-in-law says that when he built the brooder house in 1947, he had asked his mother-in-law if where he built it it would be safe on his wife’s property, that she said that it was, and that he communicated this information to the son, who made no reply.

It further appears that there was a line fence, running along the garden north of the house to a point back of the barn. At one time the testatrix asked her son to determine for her “where the center of the place come.” He said that he measured this distance from the middle of State Route 161, with a cloth tape-line, and that the center line came at a point south of where the surveyor’s stake was located when the property was surveyed. It seems to be conceded that the surveyor’s line came some fifty-five and one-half feet south of the house in which Mrs. Price, the daughter, lived. It is significant that the additional land over one-half, specified by the testatrix for the daughter would take a strip of land on the north side of the south half of several feet in width.

It would seem clear that the testatrix was endeavoring so to divide the farm that the home occupied by her and her daughter and something near half of the land should go to the daughter.

The furtfier fact can not be ignored that all parties assumed, until the survey was made, that the one set of buildings was on the land devised to the son and the other on the land devised to the daughter. And it seems wholly irreconcilable with the conduct of the testatrix that she intended that the daughter receive only a barn and an outbuilding on the land given to her.

That this was the understanding is evidenced by the fact that the appraiser’s, in their inventory and appraisement, said:

Note of Appraisers:

By request we have appraised the above premises in two parts, as follows:

1. 31 acres off south end, including residence thereon known as 5709 Karl Road, Worthington, Ohio ___________________________________ $18,000.00

2. 28.33 acres, being entire premises described above less 31 acres off south end, including residence thereon known as 5825 Karl Road, Worthington, Ohio __________________________________________ $17,000.00

If we are to hold that the property is to be divided by the surveyor’s line, then we have, in face of the manifest intention, as expressed by the language of the will and otherwise, to remember the daughter for her care of the mother, a situation where the daughter, who had done all this work, would receive thirty-one acres with no habitable building, as against 28.33 acres with two houses and two sets of buildings to the son, and that in addition thereto the son, who, by his own admission, had permitted the daughter to assume by far the major portion of the care of the mother, a cancer patient, would have with these buildings a tract of land approximately as large as the daughter’s but, with frontage on two improved roads, one of them a state route, where the daughter’s tract fronts only on one road, and that not the state route.

Apparently the son, Louis M. Thompson had no quarrel with the description in this appraisal, which was approved on December 28, 1954, as he filed no exception to it and did nothing to correct it, if it were in fact wrong.

If the Court in construing this will

should place itself in the position of the testatrix and as far as possible think as she thought, and if by so doing the testator’s intent becomes clear, that intent should be given effect, and no artificial or legalistic rule appropriate when intent is not clear be allowed to defeat that clear intent (44 Abs 52). and if

the will should be read with a view to the situation and circumstances of the testator in reference to the subjects of his disposition and the objects of his bounty. (25 C. C. [V. 8] 492),

it can not be possible to say that there was not a latent ambiguity in this will. There being such an ambiguity, the introduction- of extraneous evidence to discern the intent of the testatrix was proper, and the ruling of the Court permitting such evidence is adhered to.

Therefore, the finding of the Court is that the testatrix intended that the residence in which she and her daughter made their home was to be included in the device of the land to the daughter.

As we have said before, the expression of the desire that the line between the two tracts should “be parallel with the south line of said farm, and far enough north from the south line to contain thirty-one acres of land” is merely precatory and must not be so construed as to defeat the manifest intent of the maker of the will. However, it is possible to divide this property by a line, or lines, which shall be parallel to the south line. And this can be done, placing the north line of the south tract at a point at or near the old fence line, which enclosed the garden, running it back some 300 feet, which the evidence showed was its original length, or back of the barn, and then going south to a point where a line extended west would include thirty-one acres of land.

The Court, therefore finds (1) that the testatrix did not intend to devise her real estate so that both residence properties located thereon would be included in the land devised to the son, but did intend to include in the thirty-one acres devised to the daughter the residence formerly occupied by her and presently occupied by the daughter, and (2) that it was the intention of- the testatrix that the line separating the two tracts devised should be laid out in accordance with the suggesion above, so as to include the residence and the garden, which the son says was always north of the house, and the other buildings used in connection with the home. For this purpose a re-survey should be made of the land.

Entry may be drawn accordingly.


author: By HORNBECK, J.

text:
    THOMPSON, Estate of, In re: KARL, Extrx., Plaintiff-Appellee, v. PRICE, Defendant-Appellee, THOMPSON, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 5420.
    Decided June 1, 1956.
    Thomas A. White, Columbus, for plaintiff-appellee, Executrix.
    Forrest R. Detrick and Frank A. Koenig, Worthington, for defendant-appellant, Louis M. Thompson.

      Elwood Carpenter, Richard C. Addison, Columbus, for defendantappellee, Hattie E. Price.
    (FESS, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By HORNBECK, J.

This is an appeal from an order of the Probate Court construing the last will and testament of Elizabeth Thompson, deceased.

The parts of decedent’s will material to this appeal are:

“ITEM II. As my daughter, Hattie E. Price, and her family now live in my home property with me, and as my said daughter has promised to continue to live with me and give me such care and attention as I may require for the rest of my life, Í give, devise, and bequeath to my said daughter, Hattie E. Price, thirty-one (31) acres of land, together with all buildings thereon, off the south end of my farm of about 59 acres now owned and occupied by me, and I desire that the north line of said thirty-one (31) acres so devised to my daughter shall be a line parallel with the south line of my said farm, and far enough north from the south line to contain thirty-one (31) acres of land.”
“I also give and bequeath to my said daughter any and all household goods and any and all chickens which I may own at the time of my death.”
“ITEM III. As my son, Louis M. Thompson, now resides in the buildings on the north end of my said farm, I give and devise to my said son, Louis M. Thompson, the entire balance and remainder of my farm, comprising twenty-eight (28) acres, more or less, which remains after the thirty-one acres devised to my said daughter under Item II of this will.”

Plaintiff instituted her action in Probate Court in which were propounded two questions, answers to which required the construction of decedent’s will. These questions were:

1. Did the testatrix intend to divide her real estate so that both residence properties would be included in the part devised to her son, Louis M. Thompson, or did the testatrix intend to include in the 31 acres devised to her daughter, Hattie E. Price, the residence formerly occupied by her and presently occupied by said daughter?

2. Should the court determine that it was the intention of the testatrix to include in the 31 acres devised to her daughter, Hattie E. Price, the residence presently occupied by said daughter, in what manner should the executrix proceed to make division?

The trial judge answered the first question in the negative and in answer to the second question directed the testatrix to locate the line separating the two tracts of land devised by Items II and III of the will, according to metes and bounds set out in the judgment entry and so as to include “31 acres of land in the south tract together with the residence and the garden and other buildings used in connection with the home.”

The appeal is directed to the order construing the will and assigns two errors:

1. To the admission of all of the evidence offered on behalf of defendant-appellee relative to the intent of the testatrix; and

2. In holding that a latent ambiguity existed and by reason of such ruling used the evidence offered on behalf of the defendant-appellee relative to an alleged intent of the testatrix and thereby construed the will different from the clear and unambiguous terms as set forth therein.

It is the claim of appellant that the language of the will is definite and complete requiring no aid in its construction. On the other hand, Hattie E. Price, appellee, insists that there is a latent ambiguity in Item II of testatrix’s will which requires extraneous evidence to make definite its meaning which is in accord with the order of the trial judge.

We are favored with the written opinion of Judge Walcutt and are satisfied that he has properly resolved the issues and that the cases which he cites are pertinent. No good purpose would be served by restating the facts which are rather extensive or again citing applicable authorities. We adopt the opinion of Judge Walcutt.

Upon the specific assignments of error, the trial judge did not err in holding; that, considering the language of the will together with the oral testimony, there was a latent ambiguity in the will. Nor was any of the testimony extraneous to the will improperly admitted. The declarations of the testatrix were admissible not to contradict but to assist in the determination of her intention in the use of language which was susceptible of two interpretations. Page on Wills, Volume 4, page 669, Section 1625.

The contention of counsel is that much of the evidence is not admissible because it does not relate itself to the intention of testatrix at the time of the execution of her will, which is the controlling test. This testimony was admissible and relevant upon the determinative question of intent. Its weight and probative effect was for the trial judge.

We direct attention to a few applicable excerpts from the excellent-treatise of Page on Wills which relate to principles controlling the construction of wills and which, in our opinion, confirm the holdings of the trial judge in this case. They will be found in Page on Wills, Volume 4, pages 628-633, Sections 1618, 1620; Volume 4, page 655, Section 1624; Volume 2, pages 815, 816; Section 920.

We find no error assigned well made. The judgment will be affirmed.

MILLER, PJ, PESS, J, concur.


author: By MILLER, J.

text:
    OHIO VALLEY ADVERTISING CORPORATION, Plaintiff-Appellant, v. LINZELL, Dir., Defendant-Appellee.
    Ohio Appeals, Tenth District, Franklin County.
    No. 5676.
    Decided November 6, 1957.
    Eagleson & Eagleson, Columbus, Kinder, Kinder & Kinder, Martins Ferry, for plaintiff-appellant.
    William Saxbe, Atty. Geni., Hugh E. Kirkwood, Jr., Dwight E. Walter, Asst. Attys. Geni., Columbus, for defendant-appellee.
   OPINION

By MILLER, J.

This is a law appeal from a judgment of the Common Pleas Court sustaining a demurrer to the plaintiff’s petition and the plaintiff not desiring to plead further final judgment was rendered in favor of the defendant and the petition was ordered dismissed.

The petition consists of seven counts all of which recite that the State of Ohio through its acting Director of Highways, George Thormyer, appropriated certain perpetual easements and rights of way for road purposes and railroad purposes over lands upon which plaintiff had erected advertising signs' in pursuance of certain agreements with the owners of the land. It was alleged that the agreements were made for specified terms and subject to certain renewal privileges on the part of the plaintiff; that they granted to plaintiff and its assigns the right to maintain advertising on any part of the premises described, for the specified sums; that such premises were leased for such terms and that the plaintiff was “given no estate or interest in and no control or right of possession of the premises except the license or permission above mentioned (of changing or removing the billboards) and that in the event of a tax levy or any adverse legislation on the structures, the lease could be cancelled.”

The petition further alleged that the plaintiff entered upon the said premises and erected certain structures and paid the sums of money which were to be paid annually pursuant to the provisions of the written instruments; that the plaintiff was not made a party to the appropriation proceedings although the defendant well knew of the existence of the plaintiff’s claim. Plaintiff is contending that it had a certain interest in and upon the premises under the writing alluded to hereinbefore for which compensation is sought.

The first question presented is the nature of the agreement under which the signboards were placed upon the properties by the plaintiff. In other words, what do the agreements amount to? Were they leases or mere licenses? Counsel for the plaintiff admit in their brief that the agreements were neither witnessed nor acknowledged, although we consider this fact of no importance in solving our questions. The real nature of an instrument is not determined by what it is designated within itself but rather its exact nature is decided by a full consideration of all of its terms. In Pitts v. Housing Authority, 160 Oh St 129, the court clearly points out the distinction between the terms “lease” and “license.” At page 137, Judge Taft quotes with approval from American Jurisprudence, to wit:

“In 32 American Jurisprudence, 27, Section 2, it is said:
‘The relation of landlord and tenant is created by contract, either express or implied, by the terms of which one person designated “tenant” enters into possession of the land under another person known as “landlord.” A tenant, including a tenant for years, is an occupant who has not only an interest in land, but also some estate, be it ever so little, such as the estate of a tenant at will. He is “one who occupies the premises of another in subordination to that other’s title and with his assent express or implied” a * *. There is authority to the effect- that presence or absence of possession of the premises is a distinguishing factor between the relationship of landlord and tenant and that of lessor and lessee — that is, the one relation is referable only to the contract, and the other to both the contract and the change in possession of the premises. Thus, it has been said that the lessee is not a tenant until he enters into possession. Usually, however, the word “landlord” as employed in legal parlance, as well as in ordinary usage, means the same as “lessor,” and the word “tenant” the same as “lessee.” ’ ”
“Here, defendant gave plaintiff’s parents possession of the premises under a written contract providing therefor. Obviously, plaintiff’s parents were occupying the premises in subordination to the title of defendant thereto and with defendant’s express assent. Their relationship was referable not only to an express contract but to the change in possession of the premises.
“In 32 American Jurisprudence, 31, Section 5, it is said:
“ ‘A license to do an act upon land involves the exclusive occupation of the land by the licensee, so far as is necessary to do the act, and no further, whereas a lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms.
“ ‘Whether an instrument is a license or a lease depends generally on the manifest intent of the parties gleaned from a consideration of its entire contents. Even though a contract purports to be a “license,” if it is strictly within the definition of a lease, it will be construed as such, and not as a license.’ ”

In the case of DiRenzo v. Cavalier, 165 Oh St 386, the court held that a license to do an act upon land involves the exclusive occupation of the land by the licensee so far as is necessary to do the act and no further, whereas a lease gives the right of possession of the land and the exclusive occupation of it for all purposes not prohibited by its terms; that whether an instrument is a license or a lease depends generally upon the manifest intent of the parties gleaned from a consideration of the entire contents of the instrument.

See also 25 O. Jur., 315, Section 24.

In Bozzelli v. Seff Adv. Co., 8 Abs 642, under facts quite similar to ours, the court held that despite the form of the agreement it brought into being nothing more than a mere license and no interest in the land was conveyed.

We are of the opinion that the facts pleaded in the petition establish that the status of the plaintiff was merely that of a licensee and that he was possessed of no interest in the land involved in this action. However, counsel for the plaintiff are contending that the precise nature of the plaintiff’s property rights is not important; that the real question presented is whether the plaintiff’s property was taken by the State without compensation, it being contended that the wriings under which the plaintiff claims create an interest greater than that of a bare licensee.

Reference is made to the case of Coney Island Co. v. McIntyre-Paxton Co., 200 Fed. 901, which we do not feel appears to be on all fours with our case. In that case a right was created by a written instrument for the land to be used for a definite period upon which a merry-go-round was to be operated. Such an operation requires the constant use of the premises and it will be noted that at page 906 the court states:

“It (the contract) pertained to the use of personal property, in whose beneficial use plaintiff (the owner of the land) was directly interested It provided for action to be done on plaintiff’s land for its benefit, not merely to be derived from its interest in the defendant, but through compensation to be paid directly to plaintiff for right to so operate. The defendant, moreover, as well as the plaintiff, was under express obligation to perform it. Such rights, we think (if effectively conveyed), amount to an interest in the land, as distinguished from a mere license.”

We shall rely upon the Ohio authorities cited, supra, and hold that the written instruments referred to in the petition created no interest in the plaintiff in the land under consideration. The law in this state seems to be. well established that a license creates no interest in land. Rodefer v. Pittsburg, etc. Rd. Co., 72 Oh St 272; Callaghan v. Callaghan, 25 Oh Ap 96; Bozzelli v. Seff Adv. Co., 8 Abs 642. A licensee does not have possession except so far as is necessary to do the licensed act upon the land.

A land appropriation proceeding is an action in rem. It is an appropriation of physical property in which the value of the various interests in the property is determined and the proceeds applied accordingly. The manner in which the values are determined is clearly defined in Sowers v. Schaeffer, et al., 155 Oh St 454. Since the plaintiff has no interest in the appropriated land it is entitled to no compensation from this 'defendant by reason of its appropriation. The only remedy that the plaintiff might have available, in our opinion, would be an action for damages and which may not be maintained for the reason that the petition contained no allegation that the State of Ohio has given its consent to this suit. Article I, Section 16, Ohio Constitution. Although the State is not a party of record to this action it is well established that a suit against a state officer may be interpreted to be one against the State where the relief sought and judgment would operate to subject the State to liability. See 37 O. Jur. 268, Section 44.

We note that the plaintiff urges that the suit may be maintained under the provisions of Article I, Section 19, Ohio Constitution. The applicable part of this section provides:

“Private property shall ever be held inviolate but subservient to the public welfare, when taken * * * for the purpose of making or repairing roads, which shall be open to the public, without charge and compensation shall be made to the owner, * *

Even though this section may be self-executing, as urged by counsel, we are of the opinion that it confers no rights upon the plaintiff to maintain this action as its subject matter was not property taken for the “making or repairing of roads,” but a mere chose in action, if anything. We think it clear that the plaintiff has suffered a loss by reason of the appropriation, but that an action for the same may not be maintained against this defendant until there is a legislative enactment authorizing the suit.

We are of the opinion that the demurrer was properly sustained and the judgment will be affirmed.

PETREE, PJ, BRYANT, J, concur.


author: By KOVACHY, J:

text:
    REBERSAK, Ex Parte, Petitioner.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 24546.
    Decided May 22, 1958.
    Lawrence Landskroner, Arter, Hadden, Wykoff & Van Duzer, of Counsel, Walter A. Bates, for petitioner.
    Harrison, Spangenberg & Hull, of Counsel, Craig, Spangenberg, Gobozy & Weiss, of Counsel, William A. Weiss, for defendant.
   OPINION

By KOVACHY, J:

This is an original action in habeas corpus to discharge petitioner who is under constructive arrest and custody of the Sheriff for refusing to answer a question in a deposition hearing before a notary public, when instructed so to do.

Victor Rebersak, the petitioner, is party plaintiff in a lawsuit in the Common Pleas Court of Cuyahoga County involving an accident between a car driven by him and a ear driven by defendant. He was summoned to the deposition hearing to testify as if on cross-examination.

An excerpt of the proceedings containing the pertinent testimony reads as follows:

“CROSS-EXAMINATION OF VICTOR REBERSAK.
“BY MR. SPANGENBERG:
“Q. Did the officer ask you to take an alcohol test?
“MR. LANDSKRONER: Objection.
“A. Yes.
“Q. And did you take one?
“MR LANDSKRONER: Objection.
“THE WITNESS: Do I have to answer that?
“MR. LANDSKRONER: You can answer yes or no.
“A. No, sir, I did not. And the reason why—
“MR. LANDSKRONER: He is not asking for the reason. See, you just answer the question.
“Q. I will get to that.
“A. All right.
“Q. And what was your reason for refusing to take an alcohol test?
“MR. LANDSKRONER: Instruct the witness not to answer on the advice of counsel.
“THE WITNESS: Do I have to answer that?
“MR. LANDSKRONER: Pardon?
“THE WITNESS: Shall I answer that?
“MR. LANDSKRONER: No, you needn’t answer.
“MR. SPANGENBERG: Will you state the reasons for your objection, Mr. Landskroner?
“MR. LANDSKRONER: I don’t think it has anything to do with this accident and it’s not material to it.
“MR. SPANGENBERG: Will you instruct the witness to answer the question?
“THE NOTARY: I instruct you to answer the question.
“MR. LANDSKRONER: He refuses to answer the question on advice of counsel.
“MR. SPANGENBERG: All right, we will prepare a mittimus and have the witness arrested, delivered to the custody of the Sheriff for contempt until he answers.
“THE WITNESS: Shall I answer this question?
“MR. SPANGENBERG: Mr. Landskroner would rather have you go to jail and that’s where you are going.
“MR. LANDSKRONER: Do you mind?
“THE WITNESS: Certainly I mind.
“MR. LANDSKRONER: All right.
“THE WITNESS: I mean I feel—
"MU. LANDEKRONER: You just sit there.
“THE WITNESS: That’s all?
“MR. SPANGENBERG: That’s all Bill. Mark it continued.
“THE NOTARY: Okay.
“(Thereupon, at 2:40 p. m., an adjournment was taken to a time to be agreed upon by counsel.)”

The sole question presented to this court for determination in this matter is whether or not the party under the circumstances was required to answer the question:

“And what was your reason for refusing to take the alcohol test?” (Emphasis ours.)

The taking of a deposition of.an adverse party, as if on cross-examination, is in the nature of a proceeding of discovery. 17 O. Jur. (2d) 283. And the rule with respect to the taking of testimony in a Bill of Discovery has always limited the testimony in such proceeding to matters material and pertinent to the issues in this case. 17 Am. Jur. 16, Section 12; 58 A. L. R. 1263. In Ex Parte Schoepf, 74 Oh St 1, 77 N. E. 276, the Supreme Court stated the law in paragraph 1 of the syllabus:

“1. The clause in §5247 R. S., ‘which he may be compelled to produce as evidence,’ and as used in In re Rauh, 65 Oh St 128, must be construed with §5289 R. S., and is therefore limited to evidence pertinent to the issue, in cases and under circumstances where a party might heretofore have been compelled to produce the same by the ordinary rules of proceeding in chancery.”

(Comparable sections today are §§2317.13 and 2317.32 R. C.)

See In re Deye, 85 Oh Ap 302, 88 N. E. (2d) 60.

Was the answer to the question propounded to the petitioner lawfully ordered? Stating it another way, was the question asked of the petitioner pertinent to the issues in the case or material and relevant to defendant’s case in the tort action pending in the Common Pleas Court? The issues in that action are negligence, proximate cause and damage.

The petitioner had been asked by the police to take an alcohol test and had refused. He was under no compulsion under the law to take such test. The police consequently can request but cannot demand that an alcohol test be taken by a person. Compliance therewith must be the free act of the individual involved and wholly voluntary.

It is our view, therefore, that every person has the absolute right to refuse a request to take an alcohol test and that his refusal has no legal effect or consequence whatever. What pertinency or relevancy to the issues of a case then can the reason for such refusal have under those circumstances? Clearly, it is without significance and can have no bearing on any phase of the case in chief. Furthermore, it seems to us that an answer to this question might well open the door to a general discussion of the nature and efficacy and other aspects of the alcohol test, which would be entirely incompetent unless testified to by an expert witness.

The writ, accordingly, is allowed and petitioner ordered released from custody.

SKEEL, PJ, HURD, J, concur.