author: By SKEEL, PJ. By HURD, J:

text:
    WHITELAW, Plaintiff-Appellee, v. WHITELAW, Defendant, PRUDENTIAL INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22471.
    Decided September 29, 1952.

      S. G. Webster, Cleveland, for plaintiff-appellee.
    Arter, Hadden, Wykoff & Van Duzer, C. M. Horn, F. D. Kidder, Cleveland, for defendant-appellant.
   OPINION

By SKEEL, PJ.

This appeal comes to this court on questions of law from a judgment entered by the Common Pleas Court granting to the plaintiff herein all of the defendant’s (James D. Whitelaw) right, title and interest in and to certain insurance policies issued to him by and under a contract with the defendant, The Prudential Insurance Company of America. The action was one in divorce. The defendant, James D. Whitelaw. was not found within the jurisdiction of the court and constructive service was had upon him as provided by law. (Secs. 11984 and 11294 GC.) .

At the time the plaintiff filed her action for divorce she had in her possession two separate policies or contracts of insurance between the defendant, James D. Whitlaw, and The Prudential Insurance Co. of America. On February 8, 1952, the plaintiff filed a supplemental petition stating that she had possession of said policies of insurance and that she had and was continuing to pay the premiums thereon and in addition to the prayer for divorce a'sked that the court award her all of the right, title and interest in and to said contracts of insurance belonging to the defendant, James D. Whitelaw.

The Prudential Insurance Company of America was made a party defendant and served with summons. This new defendant filed an answer admitting the insurance contracts with James D. Whitelaw, naming the plaintiff as beneficiary. The defendant then filed a motion asking to be dismissed from the action for the reason that the court had no jurisdiction to make the order prayed for as to its contract of insurance with the defendant, James D. Whitelaw. The court overruled the motion, and in addition to granting plaintiff a divorce, entered the following judgment with regard to the insurance policies:

“The Court also finds that the plaintiff, at the time of filing the original petition, had in her possession and now has in her possession, two policies of insurance on the life of the defendant herein, said policies being with the Prudential Insurance Company of America and being described as follows: No. M-47060975 dated December 1, 1947, being a twenty payment life policy in the sum of $2000; policy No. 462803701 dated July 15, 1946, being a twenty payment life policy in the sum of $500.00. The Court finds also that the plaintiff paid the premium on the aforesaid policies in the past and is now paying the premiums on the within described policies. The court further finds that James D. Whitelaw was served only by publication and at no time during the proceedings herein did he enter his appearance. The aforementioned policies of insurance, namely, M-47060975 and 462803701 were introduced in evidence and received by the court. The court finds that it has jurisdiction to award to plaintiff all the right, title and interest owned and possessed by defendant, James D. White-law, in and to said insurance policies. IT IS THEREFORE HEREBY ORDERED, ADJUDGED AND DECREED that the plaintiff be, and she is hereby awarded all the right, title and interest of the defendant, James D. Whitelaw, in and to the within described policies of insurance and she is hereby granted full and complete control and ownership thereof, together with all rights therein and thereunder, to all of which defendant, The Prudential Insurance Company of America excepts.”

The defendant, The Prudential Insurance Company of America, in bringing this error proceeding, claims the following errors:

1. The Court of Common Pleas of Cuyahoga County, erred in overruling defendant-appellant’s motion to dismiss made subsequent to the hearing of the divorce;

2. The Court of Common Pleas of Cuyahoga County, erred in holding that it had jurisdiction to award alimony to plaintiff out of a contract between defendant, James Whitelaw and defendant-appellant, The Prudential Insurance Company of America.

3. The Court of Common Pleas of Cuyahoga County erred in holding there was property of the defendant, James White-law before the court:

4. The Court of Common Pleas of Cuyahoga County erred in assuming jurisdiction over personal contractual rights between defendant, James Whitelaw and defendant-appellant, The Prudential Insurance Company of America.

5. The Court of Common Pleas of Cuyahoga County, erred in' altering the contracts of life insurance.

6. The Court of Common Pleas of Cuyahoga County erred in entering a judgment awarding the contractual personal rights of defendant, James D. Whitelaw, to plaintiff. •

7. The Court of Common Pleas of Cuyahoga County, erred in not awarding judgment to defendant-appellant, The Prudential Insurance Company of America.

8. Other errors apparent on the face of the record to the manifest prejudice of defendant-appellant.”

It must be noted at the outset that the defendant, James D. Whitelaw, was not personally served with summons, nor did he enter his appearance. Only constructive service was obtained upon him. Such service is sufficient to deal with the marital status of the parties, but does not give the court jurisdiction to enter a personal judgment for alimony. The decree does not contain an order for the payment of alimony.

Only in the event that property, real or personal, is within the jurisdiction of the court, may the court subject it to the benefit of a plaintiff as alimony in a divorce action where the defendant has been summoned by constructive service. (Benner v. Benner, 63 Oh St 220; Reed v. Reed, 121 Oh St 188.)

A contract of insurance bestows upon the insured certain personal rights. Such rights are not lost to the insured by reason of the fact that the person named as beneficiary is in possession of the policies. The only value that can be ascribed to the policy, aside from its use in carrying out certain of the policy provisions, is that it is evidence of the terms of the contract; it is not a symbol of property.

One of the two insurance policies in this case, with respect to control by the insured, provides as follows:

“CONTROL: The insured alone shall be entitled during his or her lifetime, without the consent and to the exclusion of the Beneficiary, to obtain any cash surrender value and any other benefit and value accruing hereunder, to change the Beneficiary and to exercise any other right or option conferred by this Policy or allowed by the Company.”

The other policy has terms substantially similar upon this point.

The interest of the plaintiff as named beneficiary in the insurance policies of the defendant husband in a divorce action where the provisions of the policies reserve to the insured the right to change the beneficiary is only that of an expectancy during the life of the insured and no right becomes vested in the named beneficiary under such a policy until the death of the insured.

Katz v. The Ohio National Bank, 127 Oh St 531 (191 N. E. 782).

Getting Gdn. v. Sparks, 109 Oh St 94 (143 N. E. 184).

Atkinson v. Metropolitan Life Ins. Co., 114 Oh St 109 (150 N. E. 743). Paragraph II of the Oetting, Gdn. case, supra, provides:

. “The right of a beneficiary in a contract of insurance which reserves to the insured the right to change the beneficiary from time to time and which may be defeated by the insured by the designation of another beneficiary or by non-payment of dues does not become vested until the happening of the event which matures the policy.”

The fact that the “Policy” in this case is in the possession of the beneficiary, does not enlarge her rights therein. Nor does the fact that because of the failure of the insured to pay the premiums, the present beneficiary in order to save a forfeiture of the insurance interest has made such payments, add anything to her legal rights under the terms of the policy.

In the case of Minning v. Prudential Insurance Company, 88 Oh Ap 339, a father purchased two policies of insurance, one for each of his minor sons. Each son was designated in the policy issued to him as the insured and the father, plaintiff in the action was named beneficiary; The policies provided that the insured could change the beneficiary and among other options (after a designated period of time) could demand the cash surrender value. The plaintiff father kept possession of policies and paid thé premimus from July, 1939 (the date of the policies) until and including the payments due in July, 1946. Domestic difficulties having then developed, he notified his wife and the boys he would not pay the premiums due in July, 1947. A divorce action was filed and a decree entered which in addition to granting the wife and mother of the boys a divorce, it also ordered the husband to surrender the policies to the boys. They thereupon in January, 1947, demanded and received the cash surrender value of the policies. On March 27, 1947, both boys met death by drowning and suit was then filed by the father as named beneficiary, claiming the proceeds of the policies. In reversing a judgment for the plaintiff on one of the policies, this court, sitting by designation in the First District, held:

“1. It is the settled law of this state that where a policy of life insurance reserves to the insured the privilege of changing the beneficiary, no vested right is acquired by a designated beneficiary prior to the death of the insured.
“2. The right under a life insurance policy to surrender policy and receive its cash surrender value is an option to the insured to accept a continuing offer on the part of the insurer and when exercised, fixes the rights of the parties without further action on the part of the insurer.”

And, on page 344 the court said:

“* * * Plaintiff was without power to surrender the policy and obtain the cash value thereof. The contract of the company was with the son. The son alone possessed the right to surrender the policy for its cash surrender value. Plaintiff’s possession of the policy and his payment, of the premiums to July, 1947, invested him with no rights in addition to his mere expectancy as a revocable beneficiary. He was divested of possession of the policy by the decree of divorce.”

The provision contained in the policies that in the exercise of certain of the options therein provided for on the part of the insured it is necessary to surrender the policy as a condition precedent to the exercise of such option, is for the sole benefit of the insurer. Such provision may be waived by the insurer without liability to anyone except those who have acquired a vested interest in the policy with the knowledge and consent of the insurer.

The court, by the decree here under consideration, was attempting to make a new contract for the parties and the fact that a divorce court, having jurisdiction of the person of the insured, might compel him to assign to the plaintiff his interest in the policies as an incident of the divorce does not authorize such action in the case of a nonresident served only by publication. An end otherwise unattainable is not to be attained by construing a mere contract right as property within the language of §11990 GC.

In the case of Greenlee v. New York Life Ins. Co., 9 Abs 331, a decision of the Court of Appeals, Sixth District, it was held, in affirming the Common Pleas Court, that the right of the divorce court to subject value of real property or personal property of defendant within the jurisdiction of the court to payment of alimony awarded, though defendant was served only by publication, does not empower the court to require defendant to exercise an option to take cash surrender value of insurance policies. It may be noted that this case was taken to the Supreme Court of Ohio on error and was dismissed by that court (123 Oh St 599). It is true that the Supreme Court found that the Court of Appeals had lacked jurisdiction in the case, but the Court of Appeals had affirmed the trial court and nothing in the opinion of the Supreme Court indicates disapproval of the holding of the trial court or of the Court of Appeals on the merits.

See also: Byjelik v. John Hancock Mutual Life Ins. Co., 324 Mich. 54, 36 N. W. 2d. 212.

Estin v. Estin, 334 U. S. 541, 1 A. L. R. 2d. 1412.

See page 1219 under Headnote 2.

The plaintiff has. without doubt, the right to keep the policies in force by continuing payment of the premiums, so that she may benefit from any rights that may become due at a future date under the terms of the policy, or by a decree of a court having jurisdiction of the insured by proper service But, such benefits must come from the contract as agreed upon between the insurer and the insured and not upon terms subsequently imposed by the court, where the insured is not before the court either by personal service or by his voluntary appearance.

For the foregoing reasons, that part of the decree substituting the plaintiff for the insured in the contracts of insurance between said insured and the defendant, The Prudential Life Insurance Company of America is reversed and final judgment entered for said defendant.

THOMPSON, J, concurs.

HURD, J, dissents. (See dissenting opinion.)

DISSENTING OPINION

By HURD, J:

In my opinion the judgment of Common Pleas Court should be affirmed. In recording the reasons for this dissent I deem it necessary to state facts additional to those contained in the majority opinion.

The original petition was filed September 7, 1950, but the issues were made upon the supplemental petition of Anne S. Whitelaw, plaintiff, against her husband, James H. Whitelaw, filed February 10, 1951, wherein it was alleged in substance that plaintiff and defendant were married in December, 1941; that the defendant had been guilty of gross neglect of duty in that ever since the 15th of November, 1948, he had failed and neglected to provide plaintiff with any money and bad neglected to provide for her the common necessities of life.

In the supplemental petition the Prudential Insurance Company of America was made a new party defendant and plaintiff alleged that she had in her actual possession at the time of filing the original petition, “and does now have in her possession, two policies of insurance on the life of the defendant herein said policies being as follows: M-47060975 with the Prudential Insurance Company of America, dated December 1, 1947, for the sum of $2000.00, being a twenty-payment life policy: policy 46280371 with the Prudential Insurance Company of America dated July 15, 1946, in the sum of $500.00, being a twenty-payment life policy.”

Plaintiff further alleged that “she had paid the premiums in the past, and is now paying the premiums” and prayed the court award to her full and complete control of said bolides, together with absolute rights therein; that she be granted a divorce from defendant and such other relief as the court may deem equitable and proper.

Service upon the husband was had by publication at the last known address of residence in North Bergen, New Jersey. Proof of publication was duly filed, as well as an affidavit in compliance with the Federal Soldiers and Sailors Relief Act of 1941. The defendant, Prudential Insurance Company was properly served with summons and on March 16, 1951, filed its separate answer admitting the issuance of the policies described in the petition of plaintiff; for want of knowledge, denied that the policies were in possession of plaintiff, and then denied generally the allegations contained in the supplemental petition not expressly admitted to be true.

Upon trial, the defendant husband being in default of answer or appearance, the court granted the divorce and awarded to plaintiff the interest of defendant in and to the insurance policies in her possession.

On this appeal, the appellant insurance company assigns eight separate grounds of error, which, for the purposes of this discussion, will be considered under three headings, viz:

(1) Error in overruling appellant’s motion to dismiss; (2) Did the trial court lack jurisdiction because of service by publication upon defendant husband? (3) Did the trial court, by its judgment, impair the obligation of contract?

As to the first ground of error, it appears that some twenty-five days after appellant had answered to the merits, it filed without leave of court and out of rule a motion to dismiss on the ground that the court was without jurisdiction. This motion was overruled. Inasmuch as appellant by its answer had joined issues on the merits prior to the filing of the motion out of rule, the trial court did not commit error prejudicial to the rights of appellant in this respect.

This tarings us to a consideration of the second question, namely, was there a lack of jurisdiction because of constructive service? The answer to this question depends upon whether or not the insurance policies, under the facts of this case, constitute property within the purview of '§§11990, 11991, 11984 and 11292, sub-sections 7 and 9, respectively, GC.

It is fundamental that defendant husband having been served by publication only, the court was without jurisdiction to enter a judgment in personam, but, by the great weight of authority in this and other jurisdictions, constructive service of process, in the case of a nonresident, will give the court jurisdiction to render a decree for alimony which is binding upon property belonging to the defendant, which is within the jurisdiction of the court and has been specifically proceeded against. The action then proceeds as one in rem or quasi in rem. Such was tne procedure here. See 15 Amer. Jur. Vol. 17, Divorce & Separation, Sec. 521 and numerous cases cited thereunder.

The defendant-appellant was made a party to this action under and by virtue of the provisions of §11995 GC, which provides as follows:

“Parties Defendant: A person or corporation having possession or control of or claiming an interest in property, real or personal, of the party out of which another seeks alimony, may be made a party defendant.”

The defendant-appellant obviously qualifies under §11995 GC as a corporation claiming an interest in personal property out of which the wife seeks alimony. It filed an answer and thereby submitted to the jurisdiction of the trial court. On this appeal it is maintaining its claim of interest. Therefore, if the interest of the defendant husband constitutes res or property within the jurisdiction of the court under the applicable statutes, this must be considered an action in rem vesting authority in the court to award to plaintiff as alimony the interest of the defendant husband in and to the policies of insurance sequestered by the action and judgment of the trial court.

There are certain facts presented in the records which, in my opinion clearly show that the interest of the husband is res or personal property, vesting the court with jurisdiction in rem, some of which may be stated as follows:

The plaintiff wife is the sole beneficiary named in both policies. The policies have been and are now in her possession and within the jurisdiction of the court. All the rights and interests of the husband under the policies were abandoned by him by lapse of payment of premiums and by his departure from the state, leaving the policies in the possession of his wife. The wife has acquired a substantial equitable interest, irrespective of any interest of the husband, by paying the premiums since the time of abandonment by the husband, a period of something over four years. The present value in the policies subsists only by virtue of payment of the premiums by the wife. As the contract now stands it was made for the benefit of the wife, she being the sole beneficiary.

Each policy requires surrender of the policy to collect the amount of insurance therein provided; to exercise the various options therein provided, such as to collect cash surrender value, paid up insurance, extended insurance, to secure a loan thereon from the company, or a change of beneficiary in which case the change must be endorsed on the policy.

It was conceded during argument in open court that the husband’s whereabouts are now unknown and that he has not made any request or demand whatsoever for the policies or for any options provided therein.

The case of Hoffman v. Hoffman, 28 Abs 370 (decided Peb. 2, 1939 by the Common Pleas Court of Summit County) is analogous in many respects to the instant case, involving insurance policies in a divorce case, where constructive service only was had on the husband. The court there held that the policies of insurance constituted “property” within the purview of §§11990, 11991, 11984 and 11292, sub-sections 7 and 9, respectively, GC, and that the word “property” as referred to in these sections was a broad term and included all forms of property known to the law, whether tangible or intangible and that “policies of insurance left with the wife, named as beneficiary by the husband who deserted her, and kept alive by her, constituted ‘property’ within the divorce statutes governing alimony payments.” The court by its judgment awarded to the plaintiff as a part of the award for alimony all of the right, title and interest of the husband in said policies. The Prudential Insurance Company of America, appellant in this case, and The Metropolitan Life Insurance Company were parties defendant in. that case. The judgment in that case was not appealed, from which we may reasonably infer that appellant here was then satisfied with the decision. But whether this is true or not, we do not have the benefit of a higher court ruling. Because the facts of that case are so closely analogous to the instant case and because the opinion by Hunsicker, J. (now a member of the Court of Appeals of the Ninth District) is so well reasoned, I deem it to be very persuasive in a consideration of the instant case.

It is well established in Ohio that in an action for divorce and alimony, or for alimony alone, with constructive service only upon the defendant husband, the court may award to the plaintiff wife as alimony, property of the defendant either real or personal, tangible or intangible, brought within the jurisdiction of the court.

In the case of Benner v. Benner, 63 Oh St 220. which involved real property within the State, in an action for divorce, the Supreme Court in paragraph 2 of the syllabus stated:

“Such an action is substantially one in rem; and the court has jurisdiction at its commencement to grant a preliminary injunction preventing the disposition of the property by the defendant pending the suit and upon completion of the service by publication to decree the relief sought.”

In the case of Transit Co. v. Beeman, 16 O. C. C (N. S.) 112, affirmed in memorandum opinion, Transit Co. v. Beeman, 81 Oh St 509, on the authority of Benner v. Benner, 63 Oh St 220, it was held that in an action for alimony with constructive service only upon the defendant husband but actual service upon a corporation in which the husband owned certificates of stock, said stock may be allowed the wife as alimony and an order made upon the corporation ordering it to transfer the certificate of stock to her.

A highly authoritative and important case bearing upon this subject is Pennington v. Fourth National Bank of Cincinnati, 92 Oh St 517, 243 U. S. 269 (1917). In that case, the wife upon constructive service obtained a decree of divorce in Ohio which, as in the instant case, was admittedly valid. As in the instant case also, she sought alimony and joined as defendant The Fourth National Bank of Cincinnati in which her husband had a deposit account. The bank was ordered to pay the balance in the bank account to the wife, which it did. The husband then made demand upon and sued the bank for the full amount of the deposit, on the ground that he had been deprived of his property without due process of law, particularly because he was a non-resident of the State and had been served by publication only. The Supreme Court of the United States denied his claim and in sustaining the Ohio courts, said in part at page 271:

“The Fourteenth Amendment did not, in guaranteeing due process of law, abridge the jurisdiction which a State possessed over property within its borders, regardless of the residence or presence of the owner. That jurisdiction extends alike to tangible and intangible property. Indebtedness due from a resident to a nonresident — of which bank deposits are an example — is property within the state. Chi. Rock Isl. & Pac. Railroad Co. v. Sturm, 174 U. S. 710. It is indeed the species of property which courts of the several states have most frequently applied in satisfaction of the obligations of absent debtors. Harris v. Balk, 198 U. S. 215. Substituted service on a non-resident by publication furnished no legal basis for a judgment in personam. Pennoyer v. Neff, 95 U. S. 714. But garnishment or foreign attachment is a proceeding quasi in rem. Freeman v. Alderson, 119 U. S. 185, 187. The thing belonging to the absent defendant is seized and applied to the satisfaction of his obligation. The Federal Constitution presents no obstacle to the full exercise of this power.”

In the case of Reed v. Reed, 121 Oh St 188 (1929) the Supreme Court reversed a judgment of the Common Pleas Court of Cuyahoga County which had been affirmed by the Court of Appeals of this District, where the court had refused to grant plaintiff any alimony or to make any order for the disposition of the real estate described in plaintiff’s petition upon the ground that the defendant had been served by publication only. In the course of the opinion the court cited with approval the cases of Benner v. Benner, supra, C. & B. Transit Co. v. Beeman, supra, and Pennington v. Fourth National Bank of Cincinnati, supra, and commented at length upon the Beeman and Pennington cases, both of which involved personal property, although the Benner and Reed cases involved real property. The court also cited many cases from other jurisdictions to the same general effect, observing that many statutory provisions considered in cases from other jurisdictions are strikingly similar to those in the State of Ohio and that the courts generally comment upon the fact that service by publication is specifically provided for in divorce cases as in Ohio, and hold that as the power to adjust property rights of the parties is an incident to the power to grant the divorce, courts necessarily have the jurisdiction to dispose of property within the state in actions in rem.

In the case of Zuhkle v. Prudential Ins. Co., 244 App. Div. 549, 279 N. Y. S. 333, it was held:

“2. Decree for alimony against absent defendant will be valid, not in personam, but as charge to be satisfied out of property seized where res is within court’s jurisdiction, is seized at commencement of action and opportunity is given defendant to be heard.
“3. Insured’s right to disability payments under life policy were in nature of credits, choses in action, and other intangible interests susceptible of seizure by attachmnt, as respects insured’s right to recover from insurer payments which were ordered to be made to insured’s divorced wife by court of foreign jurisdiction.”

Counsel for each of the parties have cited and quoted from Minning v. Prudential Ins. Co., 88 Oh Ap 339, decided in July, 1950. Opinion by McNamee, J., concurred in by Doyle, P. J. and Hurd, J., sitting by designation in the First Appellate District. That case has little or no application to the instant case. It is there held, inter alia, that where a policy of life insurance reserves to the insured the privilege of changing the beneficiary, no vested right is acquired by a designated beneficiary prior to the death of the insured. Of course this holding is the settled law of this State but has no application here because the wife in this case is not claiming'any vested rights under the insurance contracts, but only such rights as are allowed by due process of law under a valid court decree. So far as that case may have application, it is clear that the plaintiff was divested of possession of the policy by a decree of divorce, and the assured, upon obtaining possession of the policy, was then in a position to exercise his option and to obtain its cash surrender value which he did. Consequently the plaintiff was not entitled to recover against the insurance company in a separate proceeding. It follows that the husband here would not be entitled to recover against appellant here in a separate proceeding.

I have adverted to the fact that the insurance policies in question have a cash surrender value. Such policies are considered and treated as personal property under the provisions of the Bankruptcy Act and, subject to state exemptions, pass to the trustee as assets of the bankrupt. Sec. 70a, clause 5, reads in part as follows:

“And provided further, That when any bankrupt, who is a natural person, shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representatives, he may, within thirty days after the cash surrender value has been ascertained and stated to the trustee by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own, and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets.”

In this connection it had been held that even where the cash surrender value is payable to the insured himself, his estate or personal representative, if under the terms of the policy and the applicable state law, the insured has reserved the right to change the beneficiary without the beneficiary’s consent, the cash surrender value is regarded as an asset to which the trustee is entitled. See Vol. 4, Collier on Bankruptcy, pages 1123-4 et seq., and numerous cases thereunder cited.

Sec. 9394 GC, providing for exemption of proceeds of insurance policies from claims of creditors, reads in part as follows:

“All contracts of life or endowment insurance or annuities upon the life of any person, or any interest therein, which may hereafter mature, and which have been or shall be taken out for the benefit of, or made payable, by change of beneficiary, transfer or assignment to the wife or children, or any relative dependent upon such person, or any creditor, or to a trustee for the benefit of such wife, children, dependent relative or creditor, shall be held, together with the proceeds or avails of such contracts, subject to a change of beneficiary if desired, free and clear from all claims of the creditors of such insured person or annuitants * *

This provision of the General Code is then another recognition by statute that Ohio considers and treats contracts of life or endowment insurance, the proceeds and avails thereof, as a species of personal property. Were it otherwise, exemptions therefor would not be provided.

The inevitable conclusion to be drawn from these Federal and State statutes is that contracts of insurance such as are involved in this case, are a species of personal property, subject to the jurisdiction of the court in an action in rem, which may be awarded to the wife under facts such as are presented in the instant case.

It is argued by the appellant that the contracts of insurance are merely evidence of rights existing between the parties and therefore cannot constitute a res or property within the 'jurisdiction of the court. We think the distinction in this connection is without legal significance.

In the case of Transit Co. v. Beeman, supra, the court regarded the certificates of stock as intangible property, but held that the principle announced in Benner v. Benner, supra, where real estate was involved must be applied.

In the case of Pennington v. Fourth National Bank etc., supra, the Supreme Court of the United States held that the principle applied whether the property was tangible or intangible, and whether the obligation sought to be enforced was admitted or contested, liquidated or unliquidated, inchoate or mature.

In relation to its classification as personal property, we see no real distinction in principle between certificates of stock in a corporation involved in C. & B. Transit Co. v. Beeman, supra, or a bank account involved in Pennington v. Fourth National Bank, supra, and an interest in policies of insurance under the facts of the instant case.

Therefore, in my opinion, whether the insurance policies are considered as tangible property or as merely evidence of property rights, and therefore intangible property, the distinction is without a difference so far as the facts of this case are concerned. In either event, the property is brought within the jurisdiction of the court and to the notice of the defendant husband, by an adequate description thereof in the supplemental petition, and by making the insurance company a party defendant under the provisions of §11995 GC. Consequently, I conclude in answer to the second question, that the trial court did have jurisdiction to enter a judgment in rem.

We come now to a consideration of the third question.— Did the trial court by its judgment and decree impair the obligation of contract? The appellant contends that the decree of the trial court is unconstitutional in that it constitutes an impairment of the obligations of the contract of the insurance company in violation of Article I, Section 10 of the Constitution of the United States and Article II, Section 28 of the Constitution of the State of Ohio. In support of this contention, appellant cites the Dartmouth College, case (Dartmouth College v. Woodward, 4 Wheaton’s Reports 518 — 4 Condensed Reports of the Supreme Court 526; 187) and Byjelich v. John Hancock Mutual Life Ins. Co. 324 Mich. 54, 36 N. W 2d 212 (1949). It is also argued that §11990 GC (now §8003-17 GC) and §11995 GC (now §8003-20 GC) are clearly unconstitutional as they have been applied to the facts of this case.

The foregoing sections of the Code, the constitutionality of which is attacked, together with similar predecessor statutes have from the earliest days formed a part oí the General Code governing Divorce and Alimony. The old and the new sections cited are presentely designated as Chapter III. These sections of the Code have undergone the test of time and innúmera pie court decisions. Considered in relation to the question of sequestration of property within the State of a husband who has absented himself for a period of some four years where constructive service is had, we need only to point to the decision of the Supreme Court of Ohio and the Supreme Court of the United States, in the case of Pennington v. Fourth National Bank of Cincinnati, supra, and the Ohio Supreme Court cases of Benner v. Benner, Reed v. Reed, and C. & B. Transit Co. v. Beeman, supra.

The case of Dyjelich v. John Hancock Mutual Insurance Co. supra, relied upon by appellant, is not in point because the insurance company was not made a party to the original divorce action as in the case at bar. Neither did the wife nay any of the premiums due on the policy as in this case That case also considered the question of the retroactive effect of a statute upon a contract previously entered into. We do not have here a question of the retroactive effect of statutes because at the time the policies of insurance in this case were issued, §§11990 and 11995 GC, giving to the court jurisdiction in a case such as this, were in full force and effect.

The Dartmouth College case has no application to the facts of this case. In the instant case the court is not by its judgment taking from the insurance company, or its officers, any powers or franchises vested by its charter, and is not transferring them to other persons without its assent as in the Dartmouth College case. The insurance company by the trial court’s decision, is not deprived of any rights or privileges of any kind. Neither is the court here making a new contract for the parties as stated in the majority opinion.

True it is that the court is taking from the husband the rights, privileges and options granted to him by the policies of insurance but he is not complaining in this court nor did he appear or complain in the trial court. These rights and privileges inuring to him by reason of the contract are here taken by due process of law under the applicable sections of the General Code of Ohio, and the decree of the court vested by law with jurisdiction to act. The point which should be emphasized is that the insurance company’s obligations remain precisely as stated in the contract and are in no wise impaired. It should also be noted that the wife now has an equitable interest in the contract of insurance by reason of keeping the policies in force by paying the premiums over an extended period of time in addition to her legal and beneficial interest as named beneficiary. The effect of the decree is merely to transfer the interest of the defendant husband in the policies to the wife as alimony and to bar the husband from thereafter claiming an interest therein, either as against the plaintiff or the appellant insurance company.

Furthermore, the appellant insurance company in this case will be adequately protected by the judgment and decree of the court, such judgment becoming res adjudicata and a complete bar to any subsequent action in this state or any other state under the full faith and credit clause of Article IV, Section I of the Constitution of the United States.

As stated in Hoffman v. Hoffman, supra,—

“This was the precise holding by the Supreme Court of the United States in the Pennington case”

as well as in the cases cited therein of Harris v. Balk, 198 U. S. 215, 25 Sup. Ct. 625; H. Sanderson-Armour Fertilizer Works, 292 U. S. 282, 54 Supp. Ct. 692.

Holding these views, it is my conclusion that the judgment of the trial court should be affirmed.


source: Caselaw Access Project

author: By QUATMAN, J.

license: Public Domain

text:
    NATIONAL BANK OF LIMA v. ALLEN et.
    Probate Court, Allen County.
    No. 26728.
    Decided February 18, 1952.
    Bentley, Cory, Boesel & Leonard, Lima, for plaintifi.
    Lippincott & Lippincott, Lima, for defendants heirs of Amzy W. Fisk.
    Irish & Southwick, Columbus, for defendants heirs of Anna B. Fisk.
   OPINION

By QUATMAN, J.

The Court finds that the estate of Amzy W. Fisk consisted in part of twenty shares of common stock in the Standard Oil Company of Ohio, being Certificate No. NYCO 4308; that this stock was bequeathed by his will to his widow, Anna B. Fisk; that Anna B. Fisk, on April 8, 1940 caused these shares to be transferred to her name on the books of the company and as evidence thereof was issued Certificate No. 17709; that thereafter on May 4, 1945, Anna B. Fisk, pursuant to a resolution of the company changing the par value of the common stock from $25 to $10, exchanged Certificate No. 17709 for Certificate No. NYCO 3269, evidencing her ownership of 50 shares having the new par value; that the 50 shares represented the original 20 shares on a stock split ratio of V-h to l; that in 1943 Anna B. Fisk, by right of subscription warrants issued by the company, purchased 3 shares of convertible preferred stock in the comp'any; that in 1945 Mrs. Fisk converted these three shares of preferred into common stock, and received seventeen shares of the $10 par common stock, being Certificate NYCO 3425; that in addition to the above mentioned sixty-seven shares, Mrs. Fisk acquired an additional three shares of common stock by reason of stock dividends paid in December 16, 1946, December 10, 1948 and December 15, 1950; that this stock is evidenced by Certificates NYCO 18243, NYCO 53645 and NYCO-, being one share each. The court also finds that Amzy W. Fisk, during his lifetime, transferred to Anna B. Fisk, by warranty deed, all of the real property contained in the inventory of the latter’s estate. The court is now called upon to decide whether or not all or part of the foregoing property owned by Anna B. Fisk at the time of her death passed one-half to the heirs of Anna B. Fisk and one-half to the heirs of Amzy W. Fisk pursuant to §10503-5 GC, or in the alternative whether to the heirs of Anna B. Fisk pursuant to §10503-4 GC, being the Statute of Descent and Distribution.

Sec. 10503-5 GC is popularly known as the “half and half” statute and reads as follows:

“Descent of estate which came from deceased spouse. When a relict of a deceased husband or wife dies intestate and without issue, possessed of identical real estate or personal property which came to such relict from any deceased spouse, by deed of gift, devise, bequest or descent, or by virtue of an election to take under the statute of descent and distribution, then such estate, real and personal, except one-half thereof which shall pass to and vest in the surviving spouse, if any, of such relict, shall pass to and vest in the children of the deceased spouse from whom such real estate or personal property came, or their lineal descendants, per stirpes. If there are no children, or their lineal descendants, then such estate, real and personal, except for the one-half passing to the surviving spouse, if any, of such relict, shall pass and descend as follows: one-half to the other heirs of such relict, under the provisions of the other statutes of descent and distribution, in the same manner and proportions as if the relict had left no surviving spouse; and one-half to the parents of the deceased spouse from whom such real estate or personal property came, equally, or the survivor of such parents, and if there be no parent surviving, to the brothers and sisters, whether of the whole or of the half blood of such deceased spouse, or their lineal descendants, per stirpes.
“If there be no children, or their lineal descendants, no parent and no brothers or sisters, whether of the whole or of the half blood, or their lineal descendants, of the deceased spouse from whom such real estate or personal property came, who survive such relict, then the provisions of this section shall not apply, and all such real estate and personal property shall pass and descend under the provisions of the other statutes of descent and distribution.

The courts in Ohio have interpreted beyond doubt that the property referred to in §10503-5 GC must be the identical property before that section becomes operative. Guear v. Stechschulte, Adm’r., 119 Oh St 1, 162 N. E. 46; Wilson v. Eccles, 119 Oh St 184, 162 N. E. 797; Berndt, Adm’r v. Lusher, 40 Oh Ap 172, 178 N. E. 14; Murphy, Adm’r v. Niehus, 50 Oh Ap 299, 198 N. E. 197; Russell v. Bruer, 64 Oh St 1, 59 N. E. 740; Knauss, Adm’r v. Knauss, 58 Oh Ap 183, 16 N. E. 2d 483.

In Knauss, Adm’r v. Knauss, 1937, supra, the court in 58 Oh Ap on page 185, 16 N. E. 2d on page 484, analyzes the term “identical property” at considerable length: “The term ‘identical property’ as used in these cases must be given its legal definition and signification. Counsel for appellants are contending for a more general and liberal or rather, loose definition. They speak of it meaning ‘the same thing’; ‘alike’; ‘equal’; or ‘similar.’ We know of no synonym that can justifiably be used for the word ‘identical’ in a legal sense. The word ‘same’ is the popular word used, ‘identical’ the philosophical word, and denotes ‘absolutely the same.’ The word ‘identical’ is more absolute than the words ‘alike,’ ‘same,’ ‘similar,’ ‘equivalent,’ or any other word often used in common speech to denote a.general corresponding identity. The opinions in the cases above cited, and others examined and not cited, clearly show that the word ‘identical’ is used in relation to the statute in its strictly legal sense.”

The only test thus far developed in determining whether or not the property in question is identical to that in question is that applied in enforcing sales agreements, viz.,

could a purchaser decline to accept the property for the reason that it is not identical to the property he agreed to purchase? See Murphy, Adm’r v. Niehus, supra; Knauss, Adm’r v. Knauss, supra.

Having studied facts of the instant case in the light of the above authorities, the court is of the opinion that the identity of the stock in question was not destroyed by Anna B. Fisk having exchanged the certificate received from the estate of her husband, Amzy W. Fisk, for a new certificate in her own name. A certificate of stock is merely evidence of ownership of shares in a corporation, the shares are the property in question and not the certificate. Surely if the property in question were an automobile it could not seriously be contended that a new certificate of title taken in the name of Anna B. Fisk would destroy the identity of the auto. Again can it be said that when the' corporation, by resolution properly taken and without prejudice to any stockholder, reduced the par value of the shares from $25 to $10, thereby increasing the holdings of Anna B. Fisk from twenty shares to fifty shares, the identity of the property was destroyed? We think not-.- Such juggling of corporation finance in the modern complex business world has come to be commonplace. The change in par value did not change the name nor the corporate purpose of The Standard Oil Company. The investment remained the same in value and in fact, without Anna B. Fisk having added or taken anything from it. Such a change in par value, intervening in a sales contract, would not, we think, so materially and substantially alter it as to be a bar to a subsequent action for specific performance. The fifty shares were not property acquired by purchase as in the case of Guear v. Stechschulte, Adm’r., supra, nor was stock surrendered by the relict to the corporation, or which by reason of a bond merger with another corporation, new stock is issued, as in Murphy, Adm’r v. Niehus, supra. The court in the latter case very learnedly bases its decision on whether the act of the corporation was so fundamental as to change the identity of the stock and concludes, properly, that the identity was lost. The change was in fact so fundamental that the relict could have refused to accept the new issue. The case is easily distinguished from the instant one.

Although this court has previously held that stock dividends belong to the corpus of a trust as being directly related to it and are not payable to the life tenant, see Armentrout v. Armentrout, Ohio Prob. Ct., 100 N. E. 2d 555, nevertheless stock dividends in the instant case are not so related to the original shares as to be declared identical property as defined in §10503-5 GC. It may well be argued that a stock dividend leaves the investment in the same position as before its declaration. However by the same token the new certificate can be sold in the market place without increasing or decreasing the value of the original shares. For the purpose of this case a stock dividend differs from a stock split in that the former gives added value to the stockholder while the latter leaves him in the same position both in his investment and in the market place. The Ohio Supreme Court has ruled that the property concerned by §10503-5 GC in order to be identical must not be accumulations from the deceased consort’s property. Wilson v. Eccles, 119 Oh St 184, 162 N. E. 797, supra. It was also held in the case of Speidel, Adm’r v. Schaller, 73 Oh Ap 141, 55 N. E. 2d 346, that the doctrine of tracing property into a transmuted form familiar in the law of trusts, has no relevancy to an inquiry of this nature.

The authorities herein cited are all agreed that property purchased by the relict with the property, or proceeds of property, received from a deceased consort is not identical property within the meaning of §10503-5 GC. Accordingly the seventeen shares in question, being Certificate No. NYGO 3425 having originally been purchased by Anna B. Fisk, along with the three shares paid as stock dividends, descend as part of her estate, under §10503-4 GC being the Statute of Descent and Distribution.

The real estate in question was transferred by deed prior to death by Amzy W. Fisk to his wife, Anna B. Fisk, the relict herein. The instruments are clear and unambigióus on their face and recite a valuable consideration. The rule is well settled that for the purpose of descent and distribution when a deed contains a recital of a valuable consideration received from the grantee, it is to be construed as a deed of purchase, and it is not competent to show by parole evidence that it was in fact a deed of gift in order to change the line of descent. Gardner v. Kern, 115 Oh St 575, 155 N. E. 134; Patterson v. Lamson, 45 Oh St 77, 12 N. E. 531; Groves v. Groves, 65 Oh St 442, 62 N. E. 1044; Thiessen v. Moore, 105 Oh St 401, 137 N. E. 906. It is therefore held that the real estate passes in the same manner as the stock purchased and the stock dividends, viz., to the heirs of Anna B. Fisk pursuant to §10503-4 GC.

Coming now to the determination of the heirs of Anna B. Fisk and of Amzy W. Fisk, and as to the amount each shall inherit, the court finds as follows:

As to Anna B. Fisk: Albert Allen, brother, one-sixth (1/6); John W. Allen, brother, one-sixth (1/6); Louise A. Carroll, sister, one-sixth (1/6); Helen C. Miller, sole heir under will of Harriet Cronley, sister of Anna B. Fisk, one-sixth (1/6); Nell Moder, niece, Helen Neal, niece, and Kathryn Weimer, niece, all children of Minnie Frambes, deceased sister of Anna B. Fisk, one-eighteenth (1/18) each; Glen Allen, nephew, Venture Allen, nephew, and Eugenia A. Neil, niece, all children of Charles Allen, deceased brother of Anna B. Fisk, one-twenty-fourth (1/24) each; Erma Coffland Miller, grandchild of the said Charles Allen by deceased daughter, Hazel Mc-Lennan, one-twenty-fourth (1/24); all being of an equal degree of consanguinity.

As to Amzy W. Fisk: Viola M. Smiley, niece, one-fourth (Vi); Wilbur M. Pennypacker, nephew, one-fourth (14); Motter C. Pennypacker, nephew, one-fourth (%); Russell A. Penny-packer, one-fourth (14).

The court further finds that the parties hereto have stipulated and agreed as to the disposition of all other items contained in the inventory as filed in the estate of Anna B. Fisk, with the exception of a Standard Oil Company dividend check in the amount of $35. The court finds that the said check represents a regular dividend paid on the seventy shares owned by Anna B. Fisk, at fifty cents (50c) per share. The court having previously found that fifty of these said shares should be distributed pursuant to §10503-5 GC and the balance pursuant to §10503-4 GC, the $35 is ordered divided and distributed in like manner.

Journal entry may be prepared accordingly. Exceptions noted. Plaintiff to pay the cost.


author: By HARTER. J.

text:
    STEER and ADAIR, Partners, Plaintiffs, v. LAND TITLE GUARANTEE AND TRUST CO., and OHIO TURNPIKE COMMISSION, Defendants.
    Common Pleas Court, Franklin County.
    No. 185644.
    Decided May 19, 1953.
   OPINION

By HARTER. J.

LAND TITLE GUARANTEE AND TRUST COMPANY CONTRACT FOR FURNISHING OF “TITLE SERVICES” TO TURNPIKE COMMISSION DECLARED TO BE VOID AS UNAUTHORIZED PRACTICE OF LAW BY A CORPORATION

By a decision in a mandamus action, rendered July 9, 1952, the Supreme Court of Ohio, in the case of State, ex rel. Ohio Turnpike Commission v. Allen, Secretary-Treasurer of the Ohio Turnpike Commission, 158 Oh St, 168, resolved all of the legal problems which were then impeding the construction of the Ohio Turnpike across northern Ohio, excepting one. This case involves that excepted problem.

The nature of the problem now being considered (and the one which the Supreme Court did not in their case attempt to resolve) is succinctly stated by the Supreme Court in their opinion, as follows, page 178:

“Finally, the respondent contends that the commission has entered into a contract with a title company to perform services that will constitute the practice of law. This, he insists, will involve an unconstitutional use of the funds of the commission. The title company is not a party to this action, and hence the court, of course, does not assume to adjudicate its rights in its absence. However, the court does hold that the commission may enter into a contract with a title company for the examination and guarantee of land titles provided that such services are limited to those defined by this court in the case of Land Title Abstract & Trust Co., v. Dworkin, 129 Oh St, 23, 193 N. E. 650.” (Emphasis added.)

Now that the Land Title Guarantee and Trust Company is properly before this court, our specific problem, in the present litigation, is whether the proviso thus expressly mentioned by the Supreme Court has been complied with in the contract (and practices thereunder) which the Ohio Turnpike Commission has entered into with the Land Title Guarantee and Trust Company.

A preliminary “background” statement is appropriate before we undertake an analysis of the facts and law of this case.

As the petition was originally filed in this court in this case on July 22, 1952, the plaintiffs sought immediately to enjoin all work on the Turnpike. However, as a result of an extended hearing on August 1,1952, on the question of whether an immediate injunction should issue, the court suggested that the legal question here was of such great importance to the public generally that it should be decided without the “crisis atmosphere” of an “injunctive relief” case To obtain an “unhurried” atmosphere, the court suggested, and the parties acceded, that an amended petition should be filed in which the request for an injunction would be withdrawn and the prayer would be, simply, for a declaration by the court as to whether The Land Title Guarantee and Trust Company was, as a corporation, actually engaged in the unlawful practice of law in discharging the obligations of its contract with the Ohio Turnpike Commission.

Following the August 1, 1952, hearing, the pleadings of all parties were filed and the case was duly advanced for trial, out of its regular order (because of the importance of the questions presented). The trial took place on October 30, 1952, and the parties then were granted leave to file their respective briefs. It was not until May 2, 1953, however, that the final brief was filed, and the case then became ready for decision.

With this recital of “background,” we will, as briefly as possible, state the facts. On June 4, 1952, The Land Title Guarantee and Trust Company entered into a contract, based upon a bid by that company, with the Ohio Turnpike Commission, which required The Land Title Guarantee and Trust Company to perform, not solely for itself, but rather for the Turnpike Commission and for a consideration in money, the following, among other “Title Services”:

(1) Examine the title to the right-of-way parcels involved (paragraph 5c).

(2) Prepare a legal description of the parcels (paragraph 5d).

(3) Prepare and transmit to the Turnpike Commission (paragraph 5e), a “preliminary title report” for each parcel, such report to contain (1) “the nearly complete legal description * * * of the right-of-way parcel * * *” (2) “a statement of the approximate acreage of the right-of-way parcel; (3) a statement of the approximate acreage of the entire ownership parcel; * * *” (5) “a statement of all the title defects and encumbrances against the right-of-way parcel; including mortgages, liens, leases, etc., to which Title Co., will take an exception * * * unless cleared by appropriate means; (7) “a statement of the instruments or actions which Title Co., will require in order that Title Co. will issue either its title-insurance policy or its title guarantee with respect to the right-of-way parcel with no exception as to such defects or encumbrances; and (8) recording data * * * sufficient to enable the draftsman of the right-of-way parcel to comply with §2573 GC * *

(4) Later, examine the documents by which the Turnpike Commission proposes to acquire title to a parcel, or by which the Commission has cured, or proposes to cure, defects “and inform the commission in writing if there are any further title defects or encumbrances to which Title Co., would take exceptions * * *” (paragraph 5K).

(5) Keep “records and evidences including ‘chain sheets’ ” available to the Commission for three years (paragraph 5o). (Verbatim language is used and emphasis is added.)

Attention is directed to the fact that all of the foregoing, specifically enumerated “services” are to have been rendered (excepting only the “three-year preservation of records” item) well in advance of the issuance of any policy of title insurance or title guarantee by The Land Title Guarantee and Trust Company to the Ohio Turnpike Commission. It is also significant that these contracted-for “services” would have to be rendered whether or not a policy of title insurance, or a title guarantee, is ever issued (in the event of change of route, for example).

The “stipulation” as to the facts of this case, and the oral evidence adduced October 30, 1952 in open court, serve to elaborate upon the practices engaged in under this June 4, 1952, contract.

A copy of the “Trust Agreement” under which the Turnpike Commission issued its bonds was tendered into evidence at the October 30, 1952, trial and this court reserved its ruling on the admissibility of such “Trust Agreement” into evidence. As we view the issues in this case, we doubt the necessity of admitting this exhibit into evidence as we do not see its materiality to the issues. Accordingly, it will not be admitted.

As we view the issue of law before this court in this litigation, that issue may be stated, at the risk of over-simplification, as

Do the foregoing “services” (which the Land Title Guarantee and Trust Company are required to perform under the contract with the Ohio Turnpike Commission) constitute the unauthorized practice of law by a corporation when they are performed for a consideration (as specified in the June 4, 1952 contract) and for a party other than the Land Title Guarantee and Trust Company itself? H

The Supreme Court, in the case of State, ex rel. Ohio Turnpike Commission v. Allen, Secretary-Treasurer, 158 Oh St 168, (as decided July 9, 1952 and as commented upon at the start of this opinion) delineated the approach which should be used in testing the legality of the Land Title Guarantee and Trust Company contract. Quite obviously, the Supreme Court recognized that a title company could legally examine and guarantee or insure land titles, but the Supreme Court expressly limited and qualified its holding in that connection by stating

“provided that such services are limited to those defined by this Court ill the case of Land Title Abstract & Trust Co. v. Dworkin, 129 Oh St 23, 193 N. E. 650.”

A clear understanding of the holding in the Dworkin case thus becomes the keystone to a proper analysis of our present problem. Two quotations from page 27 of the Dworkin opinion give the problem there being considered:

“The plaintiffs in error predicate their right to furnish opinions and certificates of title, regardless of whether or not they insure or guarantee such title, upon the provisions of §9850 GC, and claim that full authority was conferred upon said companies by this statute to perform the acts set forth in the first paragraph of the order of injunction.”
“Plaintiffs in error claim they are authorized by this statute not only to prepare abstracts of title and insure titles to real estate, but also have a separate and distinct authority to furnish an opinion as to the validity of a title, though it does not exercise its authorized functions as an insurer or guarantor of such title.”

The Supreme Court, also on page 27 of their opinion in the Dworkin case, answered these contentions in this language:

“We are persuaded that the great weight of authority supports the proposition that furnishing such opinion, whether in a so-called statement or certificate of title, falls within the realm of the practice of law. Corporations are expressly precluded from the practice of law. Since a corporation may not practice law, if the acts brought into question here constitute the practice of law, it follows that a corporation may not lawfully perform any of such acts.”

Quite obviously, there is no need for us to elaborate upon the authorities supporting this Supreme Court holding or the reasons for prohibiting a corporation from practicing law. This Court holds and, indeed, all parties to this litigation agree, that this pronouncement by the Supreme Court in the Dworkin case states the law which must be applied here.

A corporation simply cannot invade the realm of the practice of law by furnishing, to parties other than itself, an opinion “whether in a so-called statement or certificate of title” to use the Supreme Court’s Dworkin case language, or (and here we add terms to bring our present facts into line with the Dworkin holding) in a “preliminary title report” (paragraph 5e, of the June 4, 1952 Contract) or in a letter designed to “inform the Commission in writing if there are any further title defects or encumbrances to which Title Company would take exception” (paragraph 5 K of the June 4, 1952 Contract).

There is, of course, no true significance in the choice of particular words used to describe the “opinion” which is regarded as the practice of law. All courts look through the “form,” or label, applied to the act, to consider its “substance.”

Since all parties agree, and the Supreme Court has expressly held in the Allen case, that the Dworkin decision sets forth the applicable law for our present case, it ought to be possible for us to terminate the present opinion at this point. However, counsel for the Land Title Guarantee and Trust Company zealously contend that the Dworkin case does not state all of the law applicable to our present problem; on the contrary, they assert that language used by the Supreme Court in the later case of Judd v. City Trust & Savings Bank, 133 Oh St 81, is the true answer to the fact pattern which the Land Title Guarantee and Trust Company has created in its June 4, 1952 contract with the Ohio Turnpike Commission. The title company asserts, repeatedly throughout their briefs, that the following language from page 92 of the Judd opinion shows that the Supreme Court would, in a case properly before them, approve of the present “Title Service” contract:

“* * * services performed by such companies exclusively in the business of guaranteeing titles, even though they do touch upon the practice of law, should not be branded as illegal, being merely incidental to a sanctioned enterprise.
“In other words, so long as title guarantee and trust companies confine their activities to performing services beneficial to themselves in the prosecution of their approved business, the necessarily appurtenant benefits of a legal complexion to other persons does not make such pursuit unlawful.”

This court was of the opinion at the time of the August 1, 1952 hearing (as he then attempted to explain orally— Record at that hearing, page 63) and is still of the opinion that a salaried lawyer for a title company may render an opinion to his own corporate principal without being guilty of unauthorized practice of law; but when that corporate principal “sells” that opinion, legal in nature, to an outsider, that corporate principal is guilty of illegally practicing law. We feel quite strongly that the corporate principal is still guilty of unauthorized practice of law by making such a “sale” of a legal opinion to a third party even though that legal opinion was prepared for it by its salaried lawyer, directly in the course of the corporate principal’s own legitimate business activities. The vice in the equation comes from the “sale,” for a consideration, to an outsider. It is, as we view it, a clear duty of the corporate principal to keep the legal opinions prepared by its salaried employees to itself. The outsiders should, quite clearly under the Ohio Supreme Court decisions in the Dworkin and Judd cases (supra), obtain their own legal opinions from lawyers of their own choosing. Parenthetically, it might well be observed that, if such outsiders so desire, they could have their own salaried lawyers prepare legal opinions for them without the violation of any unauthorized practice of law rules. It is only when the legal opinions of captive, salaried lawyers become, in effect, the subject of barter on the market place by the corporate principals of such captive lawyers that we have the type of illegal, unauthorized practice of law by the corporations which has been so consistently condemned by the Supreme Court of Ohio in the past.

Let us apply this reasoning to the language last above quoted from the Supreme Court of Ohio in the Judd opinion. In so doing, it must be noted that the Judd language makes absolutely no reference to the “sale” of the opinions, or legal services, to outsiders. This patent ignoring of “price to be paid,” or consideration in money or money’s worth, is, we believe, vitally significant. It is inconceivable to us that our Supreme Court would ever expect its language in the Judd case to be used (tortured, if that term is preferred) as a justification for a bartering of any kind of legal service — the historical background of the legal profession abhors such a possibility. The legislature of Ohio has followed through in this traditional vein of excluding corporations from the practice of law with the enactment of such statutes as §§1698 and 8623-3 GC.

Entertaining these views as to the proper “approach” to the solution of our problem in this case, we do not deem it truly necessary that the question of “timing” be considered; by “timing,” we refer (1) to the emphasis by plaintiffs upon the fact that the legitimate insuring, or guarantee, of titles by the Land Title Guarantee and Trust Company comes much later in the sequence of activities under the June 4, 1952 contract with the Turnpike Commission than the preliminary “title service” activities, and (2) to the related “timing” contention advanced on behalf of the Land Title Guarantee and Trust Company to the effect that it must, in its appraisal of the risk which it must ultimately bear, do the preliminary surveying of records and form its opinion thereon as a condition precedent to its ultimate, entirely legal function of guaranteeing or insuring titles. A reduction of our problem to a simple problem of “timing” — i. e. which act comes first and which last — is, we believe, clear over-simplification of a highly complex problem and a reducing of the question to one of “machanics” when “logic” is required. We choose, rather, to look to the “consequences” of the several acts involved. One such “consequence” which we believe must be avoided is the bartering, for a price, of legal opinions on title on the market by corporate principals — the illegal exploiting by the corporate principals of the work of their salaried lawyers.

The attorneys for the Land Title Guarantee and Trust Company refer, in their briefs, to §9850 GC, and §9510 GC, as statutory authorization for their activities. These statutes do, certainly, give title companies certain specified corporate powers. But they do not give title companies power to over-reach their proper spheres of activity. Any statute which would attempt to sanction, or even hint at the propriety of, a corporation’s practicing law would be obviously invalid. See Syllabus 2 of State, ex rel. Thatcher v. Brough et al. 15 Ohio Circuit Court Reports (new series 97, affirmed without opinion 90 Oh St 382).

Plaintiffs assert that it is significant that the June 4, 1952, contract between Land Title Guarantee and Trust Company and the Ohio Turnpike Commission provides for payment by the Turnpike Commission of such a substantially larger fee for the preliminary title services than for, ultimately, the guarantee of title or title insurance policy. We do not agree that this disparity in the rate of compensation for the various acts is vital. So long as anything, however small an amount, is paid for the barter of a legal opinion by one corporation to another corporation or commission, we believe we have unauthorized practice of law by the corporation “selling” the opinion. As we see it, it is immaterial whether a single fee is charged, or many separate fees, for a series of acts.

While it is in no way “material” to this opinion in the “legal” sense, it might well be appropriate for this court to attempt a “practical” explanation of this situation. Let it be assumed that the so-called “title services” required in the acquisition of the Turnpike right-of-way, as heretofore explained, were performed by salaried lawyers of the Turnpike Commission (rather than salaried lawyers of the Land Title Guarantee and Trust Company) and that the results of their work was made available without charge to the Land Title Guarantee and Trust Company for that company’s use in appraising the risk which would be involved in the insuring or guaranteeing of the titles. Any potential duplication of legal services would thus be avoided and, at least in theory, the “cost” of insuring or guaranteeing titles by the Title Company could be held to a minimum.

There is no practical or legal objection to such a procedure. The sole problem involved in such procedure would be that of whether Land Title Guarantee and Trust Company would have the requisite confidence in the accuracy of the work done by the Turnpike lawyers to rely upon it in committing their company to the insuring or guaranteeing of the titles in reliance thereon.

This court orally suggested a solution to this “reliance” problem on August 1, 1952, which we still believe to be feasible: let Land Title Guarantee and Trust Company grant leaves of absence to its salaried lawyers — lawyers in whom the Title Company obviously had confidence; let the Turnpike Commission employ them; and then the construction of the Turnpike could proceed. There would be no needless duplication of legal services in such an operation. The entire process would be “practical” as well as “legal.”

The Land Title Guarantee and Trust Company representatives flatly rejected the foregoing suggestion when made in August of 1952. We believe such rejection was predicated upon their wishful thinking that they could legally over-reach their proper field of insuring or guaranteeing titles and “sell” the legal opinions of their captive, salaried lawyers to the Turnpike Commission and make, in effect, a “merchant’s profit” thereon. Such a “merchant’s profit” is clearly not allowed in the field of law practice, and should not be when the essentially personal relation between a lawyer and his client is borne in mind.

Pursuant to the prayer of plaintiff’s amended petition, this Court declares that the performance of the June 4, 1952 contract by the Land Title Guarantee and Trust Company constitutes the unlawful practice of the law; that because the issuing of policies of title insurance or guarantee (which would be entirely legal and proper activity for the Land Title- Company) cannot be effectively separated from the “illegal practice of the law” phase of the contract, the entire contract becomes illegal and void.

The amended petition further prays that this Court order the defendant, The Land Title Guarantee and Trust Company, to pay back any sums received by it from the Ohio Turnpike Commission under said contract. In equity and good conscience, the Land Title Guarantee and Trust Company should certainly do this since they (rather than the Turnpike Commission) were the ones guilty of over-reaching their corporate powers. There is, however, a procedural problem raised at this point. Plaintiffs do not sue as “taxpayers” in this case. This is not, therefore, a so-called “Taxpayer’s Action” Even if it were a typical action by “taxpayers,” as such, to interfere with or direct the acts, measures or proceedings of a public body or its officers or agents, there would still be legal obstacles to the granting of a “pay-back” order. In the first place, this action is upon the “State of Ohio” level — not the level of a municipality, or county, or township. There is substantial authority to the effect that a proceeding by a taxpayer to restrain an alleged unwarranted action of public officials cannot be maintained if the state itself is a necessary or proper party defendant, and this is so although the state is not a party to the record. See 52 American Jurisprudence — Taxpayers’ Actions, Section 6.

In the second place, there is substantial authority for the proposition that a taxpayer cannot maintain an action to enjoin the wrongful expenditure of public funds, where such funds were not raised by taxation. The Ohio Turnpike funds were raised through the sale of bonds, not by taxation. Hence, these authorities might well become applicable, should this case be considered a true “taxpayer’s action.” See 52 American Jurisprudence — Taxpayers’ Actions, Section 9.

An annotation in 58 American Law Reports 588 indicates that there is a sharp difference of authority among the states as to the right of individual citizens to challenge the acts of state officials.

It is this Court’s view that since there is such doubt on this procedural question, the doubt should be resolved by refusing to grant the extraordinary order for paying back all money received by the Land Title Guarantee and Trust Company. In other words, it is our opinion that relief as drastic and harsh as that here requested should be granted only upon clear authority.

This Court shares the view of the vast majority of the citizens of Ohio that the Turnpike should be built and as speedily as possible. Our action of August 1, 1952, in inducing the plaintiffs to withdraw their request for immediate injunctive relief should be conclusive evidence of this Court’s attempt at cooperation with the Turnpike effort. It is also a tribute to the sincerity of the plaintiffs that they willingly acceded to the Court’s suggestion at that time. However, we cannot for expediency’s sake, close our eyes to the fact that the Land Title Guarantee and Trust Company has, by its contract with the Ohio Turnpike Commission for the furnishing of “Title Services,” clearly over-reached the bounds of its legitimate corporate powers and invaded the field of the practice of law —a field which is completely closed to corporations in Ohio.

Quite obviously the plaintiffs and the defendants will each wish to preserve their exceptions to this decision. The Journal Entry which will be prepared by counsel may reserve such exceptions. Costs should be assessed against the defendants.


author: By HURD, J:

text:
    BOWLES, Estate of, In Re: MORGAN et, Plaintiffs-Appellants, v. BOWLES, Heirs at Law, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22564.
    Decided October 27, 1952.

      Baker, Hostetler & Patterson, H. F. Burns, R. T. Sawyer Jr., A. P. Hadley, of Counsel, T. G. Thompson, Cleveland, Amerman, McHenry, Jones & Morgan, Canton, for plaintiffs-appellants.
    Sayre, Vail & Steele, Pickrel, Schaeffer & Ebeling, Dayton, Wm. A. Finn, Toledo, Klein, Diehm & Farber, Cleveland, for defendants-appellees.
   OPINION

By HURD, J:

This cause comes before this Court at this time on a motion of the appellees for an order dismissing appellants’ appeal on questions of law and fact from an order of Probate Court denying probate of a lost will and codicil, on the ground that said appeal does not invoke the chancery jurisdiction of this Court, and that, therefore, the appeal, of necessity, must proceed only in questions of law.

With commendable zeal, able counsel have filed voluminous briefs arguing for their respective positions on the issues raised by this motion.

For the purposes of this discussion only, we quote without affirming, the “Statement of Facts” contained in the original brief of appellants, as follows:

“Susan Harkness Bowles died resident of Cuyahoga County, Ohio, November 17, 1951. She had executed her Last Will and Testament November 9, 1946 and a codicil thereto August 17, 1948. Following her death the original of the will could not be found; the original codicil was found. An accurate copy of the original will, conformed at the time the will was executed, was produced and received in evidence. In the Probate Court Charles A. Morgan filed an application to probate the lost Last Will and Testament and the original codicil.
“After a hearing in which none of the parties interested in sustaining the will or codicil other than Mr. Morgan were represented by counsel, and of which certain of the parties so interested had neither notice nor knowledge, including Geraldine Hart Brooks and Dorothy E. Haft, appellants herein, the court denied probate of either the lost will or the original codicil. The court, however, specifically found these documents ‘were duly executed and attested as a will and codicil thereto, respectively, by the said Susan Harkness Bowles, according to the provisions of law in force at the time of their execution, and that at the times of executing the same, the said Susan Harkness Bowles was of full age, of sound mind and memory and not under any restraint. * * ”

Miss Bowles in her will, so far as pertinent to the present problem provides as follows:

“In Item III, she gives household furniture, jewelry and like personal effects to Mr. Morgan, directing that he dispose of it to other persons and Item V she gives him $100,000.00.
“Item IV, ‘to each person employed by me at the time of my death I give and bequeath One Hundred Dollars ($100.00) for each full year during which he or she shall have been employed by me.’
“Item VI devises the entire residue to the National City Bank of Cleveland, as trustee. Comprehensive powers of management are conferred. The trustee is directed to pay annuities from the net income and/or principal of the trust estate in sums ranging from $100.00 to $200.00 per month to the then named individuals, but since some persons so named only receive an annuity upon the death of another, and because some are in ‘joint and survivorship’ form, there are, in fact, only six annuities.
“Continuing, Miss Bowles directed that all of the net income of the trust not expended in paying annuities shall be paid to Western Reserve University in memory of her uncle, John Reynolds Harkness, and his wife, to ‘maintain or assist in maintaining, a professorship at said University in some field, division or department of learning to be specified by its Board of Trustees. The name, ‘John Reynolds Harkness’ shall be used to identify said professorship, when reference is made to it, and I request that it be in the College of Arts and Sciences of said University.’ ”

The estate is inventoried at more than $600,000.00. Upon the payment of the Morgan legacy, there will remain a gross estate of nearly a half million dollars, which, subject to taxes and expenses, is to be held in perpetuity for charitable purposes, subject only to the annuities.

The codicil, the signed and duly executed original of which was presented and denied probate, reads in its entirety, except for formal introductory and closing paragraphs, as follows:

“ ‘Item I. In Item VI of my said Last Will and Testament, and especially on page 3 and 4 thereof, I named certain persons to whom I directed the Trustee of the residue of my estate to pay annuities from the net income and/or principal of the trust estate in certain specified amounts, payment of each amount to begin on the first day of the first calendar month following my death.
“ T now add to said list of persons, the name of Rose Tulley and direct said Trustee to pay to her a similar annuity, in the amount of Four Hundred Dollars ($400.00) per month, so long as she shall live. I make this provision for her, in addition to any amount which she may be entitled to receive pursuant to a general provision now in Item IV of my said Last Will.
“ ‘Item II. In all other respects, I hereby ratify and confirm. my said Last Will and all the provisions thereof.’ ”

The Probate Court rendered no opinion * * * as to why the Court refused to admit the duly executed original codicil to probate, except for a single sentence in the journal entry which says,

“ ‘The Court finds that the codicil dated August 17, 1948, was so dependent upon the terms and provisions of said last will and testament that it cannot be probated alone as a new or independent will.’ ”
“Geraldine Hart Brooks and Dorothy E. Hart, two of the annuitants under the trust created by the will, knew nothing of the provisions made for them in the will until April 8, 1952, the time of the court’s entering its order overruling the application to probate the will and codicil. They first engaged counsel subsequent to April 8, 1952. The facts herein stated with respect to the lack of notice, lack of representation, and exclusion, all appear of record in the transcript of the hearings of February 14, 1952, and April 8, 1952 and in the affidavits attached to the motions of the appellants for a new trrial, all of which motions were overruled by the Probate Court, April 30, 1952.”

The single question here presented is whether, under the Constitution and laws of Ohio, appeals to this court from a denial of the admission to probate of lost, destroyed or spoliated wills are proceedings on questions of law and fact (chancery) or on questions of law only.

The procedure in such cases is defined by §§10504-35 to 10504-38 GC, inclusive. Sec. 10504-35 GC reads as follows:

“Lost, spoliated or destroyed wills may be admitted to probate: The probate court may admit to probate a last will and testament which it is satisfied was executed according to the provisions of law in force at the time of its execution, and not revoked at the death of the testator, when such original will was lost, spoliated or destroyed subsequent to the death of such testator, or after he became incapable of making a will by reason of insanity, or before the death of sueh testator, if testator’s lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, and it cannot be produced in court in as full, ample and complete a manner as the court now admits to probate last wills and testaments, the originals of which are actually produced therein for probate.”

Sec. 10504-38 GC, reads as follows:

“Lost, or spoliated wills may be probated how: If upon such proof, the court is satisfied that such last will and testament was executed in the mode provided by the law in force at the time of its execution, that its contents are substantially proved, that it was unrevoked at the death of the testator and has been lost, spoliated or destroyed since his death, or his becoming incapable as aforesaid; or before the death of the testator, if his lack of knowledge of such loss, spoliation or destruction can be proved by clear and convincing testimony, such court shall find and establish the contents of such will as near as can be ascertained and cause them and the testimony taken in the case to be recorded in such court.”

Counsel for appellants argue that an action to probate a will is essentially and historically equitable in nature and therefore remains and partakes of the nature and benefits of a chancery action. They also argue that the “lost” will of decedent contained provisions for a testamentary charitable trust and that an action to establish, enforce, construe or terminate such a trust is equitable in nature and therefore requires that we consider this as a chancery case within the meaning of Section 6, Article IV of the Constitution of Ohio. They further argue that because the codicil requires the “trustee” to pay an annuity and no trustee being named therein, the probate court was presented with the question whether, as a court of general equitable jurisdiction, it should appoint a trustee so that the trust would not fail. They argue further that the probate court, in denying probate to the codicil, necessarily construed it and that since both the will and codicil create or involve trusts, the probate court in interpreting them, was exercising its chancery powers.

This court recently had occasion to pass upon the historical argument and related questions in the case of In re Estate of Miller v. Roberts, Admr., etc. No. 22447 in this Court of Appeals. In that case we decided (April 14, 1952) that the proceeding to probate a lost, spoliated or destroyed will, under the applicable provisions of the General Code above cited and quoted, is purely statutory in nature and necessarily a proceeding on questions of law alone which would include consideration of the degree of proof required by statute. In principle, we see no real distinction between the instant case and the Miller case, on the single question here presented. In the Miller case, we had only the question of a partially destroyed or spoliated will, while here we have the question of an alleged lost will and an existing codicil thereto, as to both of which instruments the probate court denied admission to probate as set forth in the journal entries hereinbefore quoted in part.

We think that the assumed fact that the lost will creates a testamentary charitable trust, and that the codicil “requires the ‘trustee’ to pay an annuity” the trustee not being named, does not necessarily imply that the legal aspect of the proceedings is thereby changed from one of law to one of law and fact.

In our opinion, the character of a lost, destroyed or spoliated will, whether it be a simple will, or one containing trust provisions, does not operate to change the nature of the statutory proceeding, in which the proponents seek to cause it to be probated. In such case, the court does not look to the contents of the lost, destroyed or spoliated document, for the purpose of determining whether the same may be admitted to probate under the provisions of §10504-35, et seq., GC. The issue on this question is determined according to the applicable provisions of the Code upon the “proof” adduced upon hearing as to whether, to quote the statute, “such last will and testament was executed in the mode provided by law, in force at the time of its execution, that its contents are substantially proved, that it was unrevoked at the death of the testator, and has been lost, spoliated or destroyed since his death, or his becoming incapable, as aforesaid; or, before the death of the testator, if his lack of knowledge of such loss, spoliation or destruction, can be proved by clear and convincing testimony.” (Sec. 10504-38 GC.)

The proof in such cases is derived from evidence of surrounding facts and circumstances relevant to the claims of loss, destruction or spoliation of sufficient quantum and quality to “satisfy” the court acting within the limits of sound discretion. We conclude, therefore, that the probate court was not required to “establish, enforce, construe or terminate a trust” nor was the probate court faced with the question of appointing a trustee “so that the trust would not fail” where, in pursuance of the applicable statutes, the court was not satisfied that documents containing such provisions should be admitted to probate.

Likewise, we think that the argument of appellants to the effect that the court in denying probate to the codicil and the will was necessarily construing and interpreting such instruments, and therefore exercising chancery powers, is untenable. In relation to the codicil, the court, through its journal stated in substance that it (the codicil) was so dependent upon the terms and provisions of the alleged lost will, that it could not be probated alone as a “new and independent will.” Item I of the codicil refers particularly to Item VI of said lost will and adds the name of a life beneficiary as an annuitant. It should be emphasized that we are not here deciding any questions pertaining to the merits of the case, and therefore we expressly disclaim any opinion as to whether or not the court erred in its conclusion in this respect. We simply declare that in determining the question, the trial court was not called upon to exercise chancery jurisdiction.

We have also given attention to the asserted claim that certain of the interested parties were not properly notified of the proceedings by reason whereof it is alleged they were deprived of an opportunity to be present and be represented at the hearing. These matters present questions of law only, which if properly raised, may be considered if the cause comes to this court for trial on the merits.

The appellants, in addition to other arguments presented, have urged that the doctrine of dependent relative revocation applies in this case. It is argued that this doctrine is one of equitable origin where a testator revokes a will because he believes that another testamentary disposition of his is effective, when in fact it is not, and that in such cases a court of equity will not suffer the revocation to stand. Appellees, on the other hand, contend that this is an English doctrine “which is not the law in Ohio, nor in this country, and that it is not involved in this appeal, as it was not invoked or even referred to by the proponents before the' probate court, and if arguable at all, it goes to the merits and not the nature of the appeal which is statutory and not equitable.”

At this stage of the case we do not have the benefit of either a transcript of the evidence or a bill of exceptions, but assuming the facts as presented by appellants as set forth in their original brief, we are of the opinion that the doctrine of dependent relative revocation has no application. Furthermore, we are in accord with the contention of the appellee that this doctrine, if arguable at all, must be considered in relation to the merits of the case and not to the nature of the appeal which we conceive to be purely statutory.

We emphasize the proposition that the probate court, as well as this court, must be governed, in these special proceedings, by the applicable provisions of the General Code, and that deviation therefrom may not have judicial sanction.

The appellants have cited, among others, the following cases: Myers v. City of Defiance, 67 Oh Ap 159 (an action for declaratory judgment in common pleas court where the relief prayed for affirmatively was equitable in nature); Sowers v. Cyrenius, 39 Oh St 29 (an action originating in common pleas court for the construction of a will containing a charitable trust); Gearhart v. Richardson, 109 Oh St 418 (an action originating in common pleas court to construe a will creating a charitable trust);" Palmer v. Oiler Exr., 102 Oh St 271 (an action arising in this county to construe a will containing a valid testamentary charitable gift).

These cases bear no close analogy to the instant case on the issue here presented. In the matter of the construction of wills it is clear that the same had already been admitted to probate and contained charitable or trust provisions which naturally invoke the jurisdiction of a court of equity. In the Myers case, supra, the dominant relief prayed for being injunction, was clearly equitable in nature.

Appellants appear to rely strongly upon the case of Wagner v. Armstrong, 93 Oh St 443 which originated in the common pleas court and was an action praying for partition of certain real estate and accounting for rents and profits. The court there held in substance that all partition cases being originally cognizable in courts of chancery only, must still be regarded as chancery cases and therefore appealable under such terms and procedures as may be provided by law. From this it is argued that an action to probate a will in the probate court was historically an equitable action and therefore remains and partakes of the nature and benefits and appealable rights of a chancery action. This argument is clearly untenable by reason of the holding in the early case of Morningstar v. Selby, 15 Oh St 345 decided in 1846, commented upon at length in appellees’ brief, the first paragraph of the syllabus reading:

“1. A court of chancery cannot entertain jurisdiction to set up or establish a lost or destroyed will and testament ”

It is our view that this case disposes of the contention that a proceeding to probate a copy of a lost, spoliated or destroyed will was historically a chancery action now appealable on law and fact.

In addition to the Morningstar case, supra, and the case of In re Estate of Miller v. Roberts, supra, we cite, but do not discuss, the following cases which, by analogy, are persuasive of our conclusion herein.

Missionary Society of M. E. Church v. Ely et al., 56 Oh St 405.

In re Estate of Gurnea, 111 Oh St 715.

Squire, Supt. etc. v. Bates, 132 Oh St 161.

We hold, therefore, that in Ohio proceedings to. admit to probate lost, spoliated or destroyed wills are purely statutory in nature and that irrespective of the contents of such documents, appeals to this court from a denial of the admission thereof to probate, are not equitable in nature and therefore, do not invoke the chancery powers of this court, requiring trials “de novo.”

For the reasons stated, the motion to dismiss the appeal on questions of law and fact will be granted, the' case to be retained on questions of law, and appellants will be given a period of thirty days within which to file a bill of exceptions, in pursuance of §§12223-22 and 11564 GC.

Judgment accordingly. Exceptions.

SKEEL, PJ, concurs.

THOMPSON, J, not participating.

(Note): The question here presented being one of law, counsel have agreed to submit the issue to two judges.