author: By WISEMAN, J:

text:
    FIRST DISCOUNT CORP., Plaintiff-Appellee, v. HATCHER AUTO SALES, INC., Defendant-Appellant.
    Ohio Appeals, Second District, Montgomery County.
    No. 2126.
    Decided December 1, 1950.
    Shaman, Winer & Shulman, Paul Ziegler, Dayton, for plaintiff-appellee.
    Joseph W. Sharts, Harold H. Singer, Dayton, for defendant-appellant.
   OPINION

By WISEMAN, J:

This is an appeal on law from the judgment of the Common Pleas Court of Montgomery County affirming the judgment of the Municipal Court of Dayton rendered in favor of the plaintiff.

The defendant-appellant has assigned sixteen alleged errors, ten of which involve the weight or sufficiency of the evidence. Since the appellant in its brief discussed the alleged errors generally and not separately the Court will do likewise.

The appellant cannot urge alleged error of the trial court in overruling defendant’s demurrer to amended statement of claim and in overruling defendant’s motion for directed verdict at the close of the plaintiff’s case. The defendant filed an answer after the demurrer was overruled and introduced evidence on defense after the motion for directed verdict was overruled. We do not find that the judgment is against the manifest weight of the evidence.

Several legal questions have been raised which require comment. The plaintiff instituted its action on a cognovit note. The defendant was the payee and indorser of said note It is contended that the payee was not a holder in due course. The maker, Charles V. Lynch, was a purchaser of an automobile from the defendant and as part consideration for the sale of the automobile executed the cognovit note in blank. The plaintiff came into possession of said note and filled up the note as to amount and payee according to instructions. Under §8119 GC, the plaintiff had prima facie authority to complete the instrument. From the evidence it is apparent that the instrument was completed before the plaintiff became a party to the note or before the note was discounted. It is not contended that the note was completed contrary to instructions. When the plaintiff discounted the note it was completed and negotiable upon its face. The plaintiff became a holder in due course. Sec. 8157 GC.

The defendant by indorsing the note “Without recourse” became a qualified indorser. Sec. 8143 GC. The liability of a qualified indorser is controlled by §8170 GC, which in part provides:

“Every person negotiating an instrument by delivery or by a qualified indorsement warrants:

“3. That all prior parties had capacity to contract.”

The evidence shows that the maker was a minor at the time the note was executed, which fact was unknown to the plaintiff or defendant. When the maker defaulted in payment the plaintiff herein, in another action, sued the maker who then disaffirmed the contract and interposed a defense of minority. Under §8170 GC, the defendant warranted that the maker had capacity to contract when as a matter of fact he did not have such capacity. When the defendant by qualified indorsement negotiated the note signed by the minor, it became liable under its warranty. Central Acceptance Corp. v. Bradfield, 6 Abs 566.

There is no evidence in the case supporting the contention that plaintiff had indorsed the note to a bank in Indiana. The indorsement to such bank was stricken (§8153 GC) and the holder of a negotiable instrument, especially if the holder is an indorsee, may sue on the note when due. Sec. 8156 GC. There is no support for the contention that plaintiff was guilty of usury, or that because the plaintiff was an Indiana corporation it could not be a holder in due course and maintain suit as such. Every holder is deemed prima facie to be a holder in due course. Sec. 8164 GC. The instrument was a cognovit note in which “presentment for payment, notice of non-payment, protest, notice of protest, and diligence in bringing suit against any party” was expressly waived.

The appellant contends that the auto was a necessary and that since a minor is liable for necessaries, the action cannot be maintained against the defendant indorser on his warranty. In the prior action the minor interposed a defense that the automobile was not a necessary, although it is claimed in this action that it is a necessary since it was used by the minor to go to and return from his place of employment. It has been held, and we think rightly so, that an automobile is not a necessary unless it is considered an essential to the bodily or mental needs of the minor and not for business purposes. Chambers v. Dunmeyer Chevrolet Co., 74 Oh Ap 235, 238, 58 N. E. (2d) 239.

It is contended that this action cannot be maintained since the former action instituted against the minor is still pending. The record shows that judgment was taken on the note and execution issued. On motion of the defendant the judgment was suspended. Although the appearance docket shows an entry filed vacating the judgment, no such entry was journalized or can be found among the papers. Assuming that the plaintiff still has a judgment against the maker, would this fact deprive the plaintiff of its remedy against the defendant? We do not think so. Sec. 8224 GC, provides how a negotiable instrument is discharged and §8225 GC, provides the manner in which a person secondarily liable on the instrument is discharged. The mere pendency of the action on a suspended judgment is not sufficient to discharge the instrument or operate as a bar to the action against the defendant on his warranty.

We find no errors assigned well made. Judgment affirmed.

MILLER, PJ, and HORNBECK, J, concur.


source: Caselaw Access Project

author: By SKEEL, PJ.

license: Public Domain

text:
    FIRST FEDERAL SAVINGS & LOAN ASSOC. OF LAKEWOOD, Plaintiff, v. SLOAN et, Defendants. RENKNIRT INC., Cross-Petitioner, Defendant-Appellant, SLOAN et, Defendants-Appellees.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 22296.
    Decided December 17, 1951.
    J. J. Clossman, Abner H. Goldman, Cleveland, for Renknirt Inc.
    Schaefer & Schaefer, Cleveland, for Zoller U. Sloan and Minnie Sloan.
   OPINION

By SKEEL, PJ.

This appeal comes to this Court on questions of law from a final order entered against the cross-petitioning defendant, Renknirt Inc., refusing to grant an order of revivor of a judgment in its favor against defendants, Zoller U. and Minnie Sloan.

A petition in foreclosure was filed by the plaintiff against the defendants on March 1, 1937. The defendant, Renknirt Inc., filed an answer and cross-petition on April 12, 1937. By its cross-petition as a holder in due course of a promissory note secured by second mortgage, on the property of the defendants, Zoller U. and Minnie Sloan, this defendant prayed for personal judgment and foreclosure of its lien, the amount alleged to be due being $2511.12 with interest at eight (8%) percent from March 23, 1937.

On August 23, 1938, judgment was entered on the plaintiff’s petition for $4722.16. The Court further found that the defendant, Renknirt Inc., was the owner of a note and mortgage which mortgage was a valid lien on the property of defendants, Sloan, subsequent to the lien of the plaintiff. The Court, however, postponed to a later date the determination of the amount due on the note secured by said mortgage. The Court ordered, by said decree, the foreclosure of the several liens and ordered the property sold at sheriff’s sale as provided by law.

The property was sold by the Sheriff on October 31, 1938, for an amount considerably less than the amount due the plaintiff on its -first mortgage, leaving a substantial deficiency judgment thereon and therefore of necessity there was no money remaining to apply to the indebtedness due the defendant, Renknirt, Inc.

On August 22, 1940, a personal judgment was entered for the defendant, Renknirt Inc., on its cross-petition in the sum of $3264.72 against the defendants, Zoller and Minnie” Sloan, and Edward J. Wintering, the last named defendant being the original payee on said note.

This judgment was allowed to become dormant and on June 9, 1950 the appellant, cross-petitioner, Renknirt Inc., by motion attempted to revive said judgment against the defendants, Zollar U. and Minnie Sloan. The conditional order of revivor having been granted on June 9, 1950, an execution was issued on said judgment against personal property of the defendants, Zollar U. and Minnie Sloan.

The property which was mortgaged to secure the note of the plaintiff and the debt due the defendant, Renknirt Inc., was residence property.

The sole question presented is whether or not the trial court was in error in holding that under the provisions of §11663-1 GC, that, because of the lapse of more than two years, the judgment has become unenforceable.

Sec. 11663-1 GC, effective August 19, 1937, in part provides:

“Any judgment for money, rendered in a court of record in this state upon any indebtedness, which is secured or evidenced by a mortgage, or other instrument in the nature of a mortgage, on real property or any interest therein, upon which real property there has been located a dwelling or dwellings for not more than two families which has been used in whole or in part as a home or farm dwelling or which at any time was or is now held as a homestead by the person who executed or assumed such mortgage or other instrument, or which has been held by such person as a home-site, shall be unenforceable as to any deficiency remaining due thereon, after the expiration of two years from the date of the confirmation of any judicial sale of such property completed subsequent to the rendition of such judgment, or after August 19, 1939, whichever shall be later. Provided, however, that any execution issued upon such judgment, or any action or proceeding in aid of execution, or in the nature thereof, or to marshal liens, commenced prior to the expiration of such two year period, or prior to August 19, 1939, whichever shall be later, shall not be affected by this section; and, provided further, that this section shall not affect any action or proceeding in the nature of a creditor’s bill, commenced within such two year period or prior to August 19, 1939, whichever shall be later, to subject the interest of the judgment debtor in any property owned at the date of such judgment and concealed with intent to hinder, delay or defraud creditors.”

It is the contention of the appellant that at the time its judgment was rendered, the debt was unsecured, the property upon which it held a junior lien to secure such debt having been sold in October, 1938, at sheriff’s sale and the proceeds of the sale paid to the first lien holder. It is the claim of this appellant that his contention is supported by the holding of the Supreme Court in the case of Carr v. Loan Company et al, 148 Oh St 533.

In the Carr case, supra, the Home Owners Loan Corporation instituted a foreclosure action based on an indebtedness secured by mortgage due it from Frank and Flora Carr. The Cleveland Trust Company was the holder of a second mortgage against the Carr property which secured a promissory note of $346.00. The bank, in taking this obligation secured by said second mortgage, had agreed with the Home Owners Loan Corporation not to institue an action to force the payment thereof for at least a period of three years. Within the three year period, the Loan Corporation instituted the foreclosure action just referred to. The Cleveland Trust Company was made a party. They filed a cross-petition seeking only to protect the lien of their mortgage. They did not cross-petition for judgment on their note. The decree of foreclosure found only that the defendants, Frank and Flora Carr were indebted to The Cleveland Trust Company on the note which was secured by mortgage and held that the lien of said mortgage was a valid and subsisting lien subsequent to that of the Loan Company. The property was sold for less than the sum of the first mortgage. Thereafter, on July 22, 1938, a separate action was brought by the Cleveland Trust Company for judgment on its note and judgment was rendered as prayed for.

An action was then brought on July 1, 1946, seeking a declaration that the Cleveland Trust Company’s judgment was in fact a deficiency judgment and unenforceable under the provisions of §11663-1 GC. The Supreme Court held (three judges dissenting):

“1. The provisions of §11663-1 GC, that any judgment for money rendered upon any indebtedness which is secured or evidenced by mortgage on real property of a described character, shall be unenforceable as to any deficiency remaining due thereon, after the expiration of two years from one of two designated events, applies to a situation where the indebtedness, upon which an action for money is brought, is so secured at the time such action is commenced.”

“6. In circumstances where the security of a second mortgage is taken away from him entirely by a judicial sale to satisfy a superior lien, such second mortgagee becomes a general creditor of the mortgagor to the full amount of the debt owed and may proceed accordingly to collect such indebtedness.”

This case stands for the proposition that where a creditor whose debt is secured by a second mortgage is made a party defendant in an action in foreclosure by the holder of the first mortgage (seeking to subject the proceeds resulting from an order of sale of the property to his debt) and who by answer prays only to have secured to him whatever benefit he may be entitled to because of the lien of the second mortgage, without seeking a personal judgment for the amount due, and where upon sale of the property by court order the amount realized in insufficient to pay off the obligation due the holder of the first mortgage, and the lien of the second mortgage is wiped out, a judgment taken in a separate proceeding subsequent thereto, upon the debt that had been secured by the second mortgage is for an unsecured claim and is in no way limited by the provisions of §11663-1 GC.

An interpretation of §11663-1 GC which holds that a debt formerly secured by a second mortgage which has been wiped out in a judicial proceeding is free of the limitations of such statute only because of the procedure employed or adopted to collect the debt, should not be extended beyond the clear import of the decision.

However, the facts in the case now being considered are clearly distinguishable from those in the Carr case, supra. Here, the debt of the defendant appellant was secured by the second mortgage at the time the action was commenced. By answer and cross-petition in such action, a personal judgment and foreclosure of the lien of the second mortgage was prayer for before the decree of foreclosure was entered. The delay in entering a judgment for the balance due on the second mortgage was held pending appeal of issues not affecting the right of the parties to proceed with the sale of the property. Under such circumstances, the indebtedness due the defendant appellant was secured by mortgage, even though in the proceeding in which he seeks judgment thereon because the insufficiency of the amount realized upon the sale of the property subject to the mortgage, his lien is wiped out without financial benefit to him. This conclusion is supported by the holding of the Supreme Court in the case of Lash, Admr. v. Mann, 141 Oh St 577.

For the foregoing reasons, the judgment of the Court of Common Pleas is affirmed. Exceptions noted. Order see journal.

HURD, J, THOMPSON, J, concur.


author: By HORNBECK, PJ.

text:
    LOOKER, Plaintiff-Appellant, v. MARTIN, d. b. a. CO-OP CAB, Defendant-Appellee.
    Ohio Appeals, Second District, Franklin County.
    No. 4480.
    Decided February 13, 1951.
    Henry A. Reinhard, Russ Bothwell, Columbus, for appellant.
    Clifford L. Rose, John F. Oldfield, Jr., Columbus, for appellee.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment for the defendant entered upon a special verdict of a jury.

Plaintiff, a passenger in a Plymouth automobile driven by Virgil Blanton, was struck and injured by a cab of the defendant driven by one of its employees. The Plymouth was moving north on South Lazelle Street approaching and intending to cross Livingston Avenue. The taxicab was proceeding eastwardly on East Livingston Avenue approaching and intending to cross the intersection of Lazelle Street and Livingston Avenue. The collision occurred in the intersection.

The claim of the plaintiff was that the defendant driver was negligent in failing to yield the right of way to the car in which she was riding; in failing to check the speed or divert the course of the taxicab and in driving the car at a rate of speed greater than that which was reasonable and proper, at the rate of 40 miles per hour. Defendant answered by a general denial, plead an ordinance of the City of Columbus by virtue of which it was claimed that Livingston Avenue was a main and through highway on which plaintiff’s automobile was proceeding and that plaintiff’s driver failed to yield the right of way to defendant’s automobile. The Court, at the conclusion of the testimony, on motion of plaintiff withdrew consideration of the ordinance from the jury.

At the conclusion of the trial of the cause both the parties submitted special verdicts for the consideration of the jury. The jury used neither form submitted but returned the following verdict:

“We being nine or more members of the jury find that under the circumstances and conditions existing both parties were negligent, but since the plaintiff has not shown conclusively that her alleged injuries are a result of this accident, we find no damages for her.”

This verdict was signed by nine members of the jury. Plaintiff moved for judgment on the verdict and for a new trial after judgment which motions were overruled.

Four errors are assigned:

(1) Misconduct of counsel for defendant in developing the fact that at the time of the collision in question, police officers who came to the scene arrested the driver of plaintiff’s car; in stating that plaintiff’s driver had paid for the damage to defendant’s cab and in improperly maintaining that the quoted ordinance had application to require plaintiff’s driver to stop his car at • Lazelle Avenue before entering East Livingston Avenue.

(2) The verdict was against the manifest weight of the evidence.

(3) Error in refusal of the Court to sustain plaintiff’s motions.

(4) Other errors apparent upon the face of the record.

We do not purpose to discuss separately all the errors assigned but will come immediately to the determinative issue in this cause, viz., the action of the trial judge in overruling the motion of plaintiff for a new trial because the verdict was not in accordance with law. The question more properly stated is whether or not the Court could enter the judgment under consideration upon the verdict as returned. We are satisfied that it could not properly have been entered.

The special verdict is incomplete and incorrect in several particulars. It does not resolve the issues or facts between the parties so as to enable the trial judge to determine, as a matter of law, in whose favor the judgment should be entered. The parties in this action were the plaintiff, a passenger in the Blanton car, and the Cab Company. Blanton was not a party. When, then, the special verdict recites that both parties were negligent it is not responsive to any issue drawn upon the pleadings, or developed in the testimony. If the jury had the right to return such a verdict and determine the question of negligence in the special verdict without a finding of any facts to support it, then it does establish that the defendant was negligent. There was no issue as to the negligence of the plaintiff. The negligence of her driver, if any, could not have been imputed to her. If the defendant was negligent resulting proximately in injuries to the plaintiff she should recover. The negligence of plaintiff’s driver would preclude recovery on her part only if it was the sole proximate cause of the collision. Giving, for the moment, effect to the special verdict under consideration, it established only that the defendant was negligent but it did not include any finding as to proximate cause or any facts from which the trial judge could determine the proximate cause of the collision. This special verdict continues:

“but since the plaintiff had not shown conclusively that her alleged injuries are a result of this accident, we find no damages for her.”

There is no basis in law for the denial to the plaintiff of damages for injuries pleaded and shown to have been suffered by her because she has not conclusively proved that she suffered such injuries. That is not the quantum of proof requisite to her recovery of damages. On the other hand, there is no finding of any damages sustained by the plaintiff upon which the Court could enter judgment for her. We cannot say that there was no evidence to support an award of damages to the plaintiff in some amount although the medical proof did not closely follow the averments of the second amended petition as to the nature and extent of the injuries claimed to have been sustained as a result of the collision of November 26, 1948.

The special verdict as returned by the jury not only is insufficient to support the judgment as entered or as sought by the motion of the plaintiff, it is not such a verdict as is contemplated by §11420-14 GC, the language of which is:

“A special verdict is one by which the jury finds facts only as established by the evidence; and it must so present such facts, but not the evidence to prove them, that nothing remains for the court but to draw from the facts, conclusions of law.”

Such verdict must fairly and fully respond to the material issues in the case, and the facts should be sufficiently shown to stand as a final decision of the special matters with which it deals. It must be so clear and complete that the proper judgment can be rendered upon it. Pennsylvania R. R. Co. v. Vitti, 111 Oh St 670; Dowd-Feder Co. v. Schreyer, 124 Oh St 504; Wills v. Anchor Cartage & Storage Co., 38 Oh Ap 358; Globe Indemnity Co. v. Schmitt, 77 Oh Ap 413. It is not necessary to cite further authorities to establish that the verdict here does not find facts only as established by the evidence, neither does it so present such facts as that the Court could draw from them the conclusions of law essential to a judgment.

If we are correct in holding that the special verdict is not a proper verdict under the Code, the other errors assigned are without any particular force, but we do not find that any error assigned is well made except the refusal of the trial court to sustain the motion of plaintiff for a new trial.

The trial judge indicated proper appreciation of the admissibility of the evidence as it related to the ordinance pleaded; that the arrest of plaintiff’s driver was not probative of any issue as to plaintiff’s negligence and the relation of Lazelle Alley to the obligation of plaintiff’s driver to yield the right of way to defendant. As a matter of fact, the details as to the charge against the driver of plaintiff’s car, his arrest and conviction were developed in detail and in the main by counsel for the plaintiff.

Now that the cause will, in probability, be retried counsel and the trial judge will have the benefit of the evidence offered in the first trial and can and will restrict the development of facts to competent, relevant evidence and make certain that the jury receives and considers no irrelevant or prejudicial testimony.

The judgment will be reversed and cause remanded for a new trial.

WISEMAN and MILLER, JJ, concur.


author: By ALLEN, CJ.

text:
    SWETLAND v. CURRY et.
    United States Court of Appeals, Sixth Circuit.
    No. 11248.
    Decided May 9, 1951.
    Robert J Bulkley, James A. Butler, Cleveland, for appellant.
    Saul S. Danaceau, A. M. Braun, Frank T. Cullitan, Cleveland, for appellees.

      Before HICKS, Chief Judge, and ALLEN and MARTIN, Circuit Judges.
   OPINION

By ALLEN, CJ.

This case involves the question whether the commissioners of Cuyahoga County, Ohio, may be held guilty of contempt in proceedings arising out of the alleged violation of an injunction entered in a case to which the county was not a party, forbidding the use for airport purposes of land later appropriated by the county for an airport.

The District Court entered a decree against the Curtiss Airports Corporation and others, enjoining them from operating an airport upon the east side of Richmond Road, Cuyahoga County, Ohio, opposite land located on the west side of the road, then and now owned by appellant. The decree was modified in certain respects in this court, 55 F. 2d 201, 83 A. L. R. 319, but the operation of an airport “as now located” was enjoined upon the ground of nuisance. The final decree on mandate, entered September 26, 1932, was directed to the defendants “and each of them, their agents, employees, successors and assigns, and all persons and corporations, private or municipal, acting by or under their authority or direction, or deriving title to or right to possession of the property hereinafter described through any of them. * * *” It enjoined them, among other things, “from using or permitting others to use said property, or any part thereof, as a place for the warming up, landing, or taking, off of aeroplanes.”

The county of Cuyahoga, in 1946, instituted appropriation proceedings for the land in question and on December 30, 1946, acquired title from the Curtiss Airports Corporation. A taxpayer’s suit was then filed, seeking to enjoin the expenditure of public funds for the airport, to cancel notes theretofore given, to refund the sum paid in the transfer, and asking for other appropriate relief. This suit was dismissed, State, ex rel. Helsel v. Board of County Commissioners, 79 N. E. 2d 698, 37 O. O. 58, and the judgment was sustained in the Court of Appeals, 78 N. E. 2d 694, 50 Abs 338, and in the Supreme Court of Ohio, 149 Oh St 583, 37 O. O. 296, 79 N. E. 2d 911. With full knowledge of the injunction and its terms, the county used the premises as a landing field and airport. A motion to show cause why the commissioners should not be cited for contempt was filed herein in the injunction case, and was followed by a motion to dismiss, which the District Court sustained:

Appellant contends that since the injunction was expressly directed to all persons and corporations, private or municipal, deriving title from the Curtiss Airports Corporation, it is binding upon the county commissioners. The District Court held that the county, under its powers of eminent domain and the appropriation proceedings, took not a derivative, but a new and pristine title. It also concluded that under Rule 65(d), Rules of Civil Procedure, the injunction could not operate upon persons not party to the injunction suit in absence of proof that such persons are acting in concert or participation with the parties enjoined. No such proof was presented against the county.

As to the question of derivative title, the county acquired its title under appropriation proceedings pursuant to §2433-2 and §3677 GC. Sec. 2432-2 GC confers upon the taxing authority of any county the same authority, subject to the same limitations with respect to airports, landing fields, and other air navigation facilities as is conferred upon municipalities under §3677 and §3939 GC. Sec. 3677 GC grants to municipal corporations special power to appropriate, enter upon, and hold real estate within the corporate limits for the purpose, among others, of establishing airports, landing fields, or other air navigation facilities, and to operate such airports and landing fields. These powers aré limited by Art. I, Section 19, of the Constitution of Ohio, which provides that where private property shall be taken for public use, a compensation therefor shall first be made in money or first secured by a deposit of money.

Recognized texts declare that there are two theories as to the nature of eminent domain, (1) that on appropriation by an authorized governmental unit the public derives a new and pristine title, not from the owner, but independently: (2) that eminent domain is merely an exercise of the inherent sovereign power to compel a sale of the owner’s interest in the property. In a state such as Ohio, whose constitution provides for advance payment of compensation for property taken for public use, it is said that the acceptance of the second theory is “almost inevitable.” 1 Nichols on Eminent Domain (2d ed.), 72, 10 R. C. L. 15; 29 C. J. S., Eminent Domain, Section 2, p. 777. Appellant therefore contends that the appropriation proceedings merely resulted in a compulsory sale of the interest of the Curtiss Airports Corporation; that there was privity of estate between the county and the corporation; and that this fact compels the conclusion that the title of the county is derivative and not new and independent. The final decree of injunction expressly covered persons “deriving title” through the defendants enjoined.

Assuming, however, that privity of estate exists between Curtiss Airports Corporation and the county, this circumstance standing alone does not require the conclusion that the title is derivative. This was the precise holding in Duckett & Co., Inc. v. United States, 266 U. S. 149, 45 S. Ct. 38, 69 L. Ed. 216, in which Mr. Justice Holmes declared: “Whether or not for some purposes the new takers may be given the benefit of privity with the former holders, the accurate view would seem to be that such an exercise of eminent domain founds a new title and extinguishes all previous rights.”

The element of contract and meeting of the minds necessary to derivative title was lacking in the instant case. The eminent domain proceeding is in invitum, United States v. Southern Power Co., 4 Cir., 31 F. 2d 852, 858, and carried on under the sovereign power of the state. In such proceedings the state acquires an indepedent title free of prior incumbrances. Duckett & Co., Inc. v. United States, supra; United States v. 25.936 Acres of Land, 3 Cir., 153 F. 2d 277. This is also the law in Ohio. Doan v. Cleveland Short Line Ry. Co., 92 Oh St, 461, 112 N. E. 505. Cf. State, ex rel. Helsel v. Board of County Commissioners, supra, 79 N. E. 2d at page 706.

Moreover, the county, not having been made a party to the injunction suit, was not bound in contempt proceedings by the restraining order entered against the Curtiss Airports Corporation. While certain old decisions make broad statements to the effect that one who knows of an injunction is bound by its terms, Cf. In re Lennon, 166 U. S. 548, 17 S. Ct. 658, 41 L. Ed. 1110, an examination of the cases shows that the limitation formerly written into Section 383, 28 U. S. C., and now carried into Rule 65(d), is in general adhered to. Even in the Lennon case, Lennon, who was not a party to the original injunction suit, aided and abetted the railroad enjoined in its refusal to transport goods of the railroad citing him for contempt. In Rodman v. Rogers, 6 Cir., 109 F. 2d 520, the defendant enjoined formed a corporation in order to avoid the effect of the injunction and the corporation was held to be bound. The weight of authority is clearly in favor of the proposition that a person not a party to an injunction suit may not be held guilty of contempt for violating the injunction unless he is shown to be identified with or is an aider and abettor of the party originally enjoined. No better statement of the rule has been made than that by Judge Learned Hand in Alemite Mfg. Corp. v. Staff, 2 Cir., 42 F. 2d 832. The opinion states that one who knowingly assists a defendant in violating an injunction subjects himself to proceedings for contempt, but continues: “On the other hand no court can make a decree which will bind any one but a party; * * * it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. * * * It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court. * * ’ This means that the respondent must either abet the defendant, or [he] must be legally identified with him. * * *”

This case was cited with approval in Chase National Bank v. City of Norwalk, 291 U. S. 431, 437, 54 S. Ct. 475, 477, 78 L. Ed. 894, in which the Supreme Court rejected the contention that an injunction issued by a federal court operated against the State of Ohio because it had full notice of the existence of the injunction at the time it instituted the ouster proceedings attacked in the suit. The opinion stated that “by extending the injunction to ‘all persons to whom notice of the injunction should come,’ the District Court assumed to make punishable as a contempt the conduct of persons who act independently and whose rights have not been adjudged according to law.” Cf. Regal Knitwear Co. v. National Labor Relations Board, 324 U. S. 9, 65 S. Ct. 478, 89 L. Ed. 661.

The instant case does not involve the liability of a private party, successor in title, for violation of a restrictive covenant running with the land. Cf. Rivera v. Lawton, 1 Cir., 35 F 2d. 823.

Whether under the Ohio law which'makes municipal corporations liable for the conduct of proprietary functions, City of Barberton v. Miksch, 128 Oh St, 169, 190 N. E. 387; State ex rel. White v. City of Cleveland, 125 Oh St, 230, 181 N. E. 24, 86 A. L. R. 1172, and in case of nuisance arising out of the performance of governmental functions, Harris, Admx. v. Findlay, 59 Oh Ap, 375, 13 O. O. 172, 18 N. E. 2d 413. Cf. Selden v. City of Cuyahoga Falls, 132 Oh St, 223, 7 O. O. 511, 6 N. E. 2d 976, appellants have a remedy for damages or for injunction we do not decide. The holding is limited to the question of contempt.

Judgment affirmed.

      Rule 65(d). Rules of Civil Procedure, 28 U.S.C.A.
      “Every order granting an injunction * * * is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”


author: By THE COURT. By THE COURT.

text:
    KNISELY, Plaintiff-Appellee, v. MURPHY, Defendant-Appellant.
    Ohio Appeals, Second District, Franklin County.
    No. 4410.
    Decided March 30, 1950.
    I. J. Hoover, Columbus, for plaintiff-appellee.
    L. P. Henderson, Columbus, for defendant-appellant.
   OPINION

By THE COURT.

This is a motion seeking an order requiring the appellant to furnish an additional bond in the sum of $500.00.

The appellee has submitted no proof by affidavit or otherwise to support the motion, and the same will therefore be overruled.

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

APPEAL ON QUESTIONS OF LAW

No. 4410. Decided May 22, 1950.

By THE COURT.

This is an appeal on questions of law. from the Common Pleas Court of Franklin County, Ohio, affirming the judgment of the Municipal Court of Columbus, Ohio, evicting the defendant-appellant from the premises which she occupied.

The appellant assigns as error that:

The Court of Common Pleas erred in affirming the judgment of the Municipal Court;

That the judgment of the trial court is manifestly against the weight of the evidence; and

For other errors apparent on the face of the record.

The principal error of which the appellant complains is that the trial court committed error in refusing to vacate the judgment. At the time the case was assigned for hearing in the Municipal Court both the plaintiff and the defendant appeared in court with counsel. The case was not tried to the Court. The entry on the record of the Court is as follows:

“2/24/49. By agreement of parties with counsel present judgment for plaintiff for restitution of premises described in the petition and costs. Writ not to issue until April 24, 1949 conditioned on payment of $30 per month for occupancy as long as defendant remains in premises.”

The record shows that the defendant remained in the premises after April 24, 1949, and that on April 25, 1949, the writ for eviction was issued. Subsequently, on May 17, 1949, the defendant filed her petition to vacate the judgment. At the hearing on the petition the defendant testified that she did not understand that a judgment was to be taken on February 24, 1949. She testified that she understood that the case would be continued for a period of sixty days. At the hearing on the petition the attorney who represented the defendant in the eviction action testified that after some discussion took place between the plaintiff, the defendant and their counsel they arrived at an agreement whereby the plaintiff was to take judgment on' that day, but no writ for eviction would be issued until the expiration of sixty days and that the defendant as a part of the agreement would be required to pay the rent for the sixty day period. It is agreed that the defendant did pay the plaintiff the rent on that date for the sixty day period. The defendant’s counsel testified that he explained to the defendant that judgment was to be taken and that she agreed thereto.

The question presented is one which involves the weight of the evidence. The trial court apparently believed the testimony given by the defendant’s counsel. If the testimony of the defendant’s counsel is accepted the petition to vacate the judgment was properly overruled.

In our opinion the judgment of the trial court was not against the manifest weight of the evidence and the Court of Common Pleas did not commit error in affirming the judgment of the Municipal Court. There are no other errors apparent upon the face of the record which have been brought to the attention of the Court. Judgment affirmed.

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


author: By DAVIES, J.

text:
    HEINE, Estate of, In re.
    Probate Court, Hamilton County.
    No. 173057.
    Decided September 25, 1950.

      Frost & Jacobs, Cincinnati, for exceptors.
    Herbert S. Duffy, Robert E. Younger, Columbus, for Department of Taxation, State of Ohio.
   OPINION

By DAVIES, J.

This matter comes before the court upon the exceptions of Carl M. Jacobs, executor of the estate of Emilie L. Heine, deceased, Frieda H. Jacobs and Emilie J. Heine, daughters of decedent, to an order made by this court including in the estate for inheritance tax purposes the value and amount of the interest of the daughters in a certain trust created by Emilie L. Heine during her lifetime.

The facts established at the hearing upon the exceptions show that the said Emilie L. Heine died on January 2, 1949, at the age of eighty-six, and that on May 20, 1932, she created with The Lincoln National Bank an irrevocable trust which, at the date of her death, was valued at $629,544.99.

The trust agreement provided that the trustee should collect the interest, dividends and income from the trust estate, and after paying all proper or necessary charges, expenses and taxes, should invest “the net income” in certain designated securities and should “add the same to the principal or corpus of the trust” to be held, managed and disposed of under the terms of the trust “so long as the grantor may live.”

While the trust was irrevocable, the grantor reserved during her lifetime the right to modify or alter the trust agreement “to enlarge or restrict the powers and authority of the trustee in the investing and reinvesting of the trust fund” to be made “by instrument or instruments in writing, delivered to the trustee.” The grantor also reserved the right to require the resignation of the designated trustee and to designate a successor trustee. The grantor reserved no other rights concerning the trust.

The trust instrument further provided that after the death of the grantor, the trustee should divide the corpus of the trust into two equal parts, one of which should be paid to the daughter of the grantor, Frieda H. Jacobs, if living, and if not living, then the share which would have been paid to her, had she been living, should be divided equally between her surviving issue, and if there are no issue, then to her heirs, executor or administrator.

The remaining one-half of the trust estate was to be held by the trustee and the net income therefrom should be used for the support and maintenance of the daughter of the grantor, Emilie J. Heine, either by paying said income directly to her or disbursing it in such manner as said trustee in its discretion deems to be for her best interest. It was provided that Frieda H. Jacobs, if living, should be consulted relative to the payment of the income to the daughter, Emilie J. Heine, or the disbursement of it for her use and benefit.

The agreement also provided that after the death of-the said Emilie J. Heine, the corpus of the trust share provided for her should be paid to her issue, per stirpes, and if there should be no issue, and if Frieda H. Jacobs should be living, the trustee should pay to Frieda all of the trust estate remaining in its possession, and if she should not be living, then said share should be paid to her issue surviving, equally, and if there should be no issue, then to her heirs, executor or administrator.

Both daughters survived the mother.

The mother, Emilie L. Heine, was sixty-nine years of age on May 20, 1932, when she established the trust. She was a widow possessed of a very large estate and, being deeply concerned with the breaks which had occurred in the securities market and with existing depressed economic conditions, and desiring to put a part of her estate in such position that it would be assured for the security of her daughters, and so she would be relieved of the worry of handling all of her securities, she decided to create the trust outlined above. She was also motivated in creating the trust by a desire to avoid gift taxes which would become effective under the Gift Tax Law on June 1, 1932. When made, the trust gift approximated ten per cent of the value of her estate.

When the trust was created, and until a year before her death, Mrs. Heine was, and for years had been, in excellent health. She was engaged in charitable, civic, philanthropic and religious activities. She traveled extensively in this and other countries. Her last illness did not continue for more than seven or eight weeks.

Before the creation of the trust, the mother had made additional gifts to each of the daughters of $250,000.00 to $500,-000.00 for the purpose of reducing her income tax liability and to give her daughters financial stability. The daughters were the principal beneficiaries under the provisions of her will.

The county auditor, under the provisions of §5341 GC, fixed the actual market value of decedent’s estate, exclusive of the gift under question, for inheritance tax purposes at $1,544,622.60.

Under these facts, the court is asked to decide if the trust gift is or is not taxable as a gift made in contemplation of death or intended to take effect in possession or enjoyment at or after the donor’s death.

Sec. 5332 GC, provides that a tax is levied upon the succession of any property passing, in trust or otherwise, to or for the use of a person, institution or corporation “when the succession is to property from a resident, or to property within this -state from a non-resident, by deed, grant, sale, assignment or gift, made without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property:

(a) In contemplation of the death of the grantor, vendor, assignor, or donor, or

(b) Intended to take effect in possession or enjoyment at or after such death.”

From the outlined facts in this case, the court concludes that on May 20, 1932, Emilie L. Heine, the mother, made a gift to The Lincoln National Bank without valuable consideration for the primary benefit of her.two daughters, as evidenced by the terms of an irrevocable trust agreement of that date, and that such gift was not made “in contemplation of the death of the grantor.” See In Re Estate of Thompson, 147 Oh St, 119, 33 O. O. 275, for similar facts in which it was held that a gift was not made in contemplation of death.

The court now comes to the question as to whether such gift was “intended to take effect in possession or enjoyment at or after such death.”

The burden is upon the Tax Commission to show that the gift is taxable under the Ohio inheritance tax laws. Sec. 5332 GC; Tax Commission v. Parker, 117 Oh St, 215, 158 N. E. 89.

Courts have uniformly held that transfers in which the donor retains during his lifetime the right to receive income from a trust are taxable as being intended to take effect in possession or enjoyment at or after the donor’s death.

Thus, in the case of Sherman, et al. v. Tax Comm, of Ohio, 125 Oh St, 367, the court considered facts in which Harriette B. Sherman, on August 20, 1924, transferred property to The Union Trust Company of Cleveland, as trustee, with provisions that the trustee pay the income arising from the trust property to her during her life, and in addition should pay her, at its discretion, such additional sums from the corpus as it should deem necessary. At her death, the corpus was to be transferred and delivered to her two children. She also reserved the right to terminate the trust by directing immediate distribution to the remaindermen. While in good health, she died on October 26, 1929. ■

The court held that such an estate transferred through the medium of a trust instrument, which by its terms postpones the enjoyment of the trust estate until after the death of the donor, is taxable under the inheritance tax laws of Ohio.

The court pointed out on page 372 of the opinion that the enjoyment of these estates was the income and that by the terms of the trust instrument, the trustee was directed to so manage the estates as to make them income producers, and the donees were not permitted to enjoy one cent of this income until the donor’s death, except in case of revocation which did not occur. The court emphasized the fact that the donor retained substantial control over the corpus of the trust so long as she lived.

The court finally pointed out that this was not a gift inter vivos because it is fundamental that in order to make a gift inter vivos the donor must relinquish all control over the gift and deliver it to the donee. The donor in this case retained substantial control over the corpus and income from the trust by force of the terms of the trust instrument so ■long as she lived.

In the case of In re Estate of Rising, 186 Minn. 56, 242 N. W. 459, the trustor transferred income-bearing securities to a trustee, with full powers of reinvestment and management, and reserved all the income to herself for life. Upon her death, the income from the trust was to go to a daughter as long as she lived, together with such portion of the corpus of the trust funds as might be necessary for her maintenance, and, on the daughter’s death, the trust was to terminate with remainder to another daughter.

The court held that “gifts inter vivos, but with reservation of income to donor for life, while not testamentary and assumed not to be in contemplation of death (in the strict sense), are intended to ‘take effect in possession or enjoyment’ upon death of the donor, when the donees become ‘beneficially entitled’ to the property and ‘the income thereof’ so as to make them liable to a succession” under the Minnesota statute which provided for an inheritance tax when the transfer is of property made by deed, grant, bargain, sale or gift “intended to take effect in possession or enjoyment at or after such death.”

The Supreme Court of Ohio has also considered in the case of In re Estate of Thompson, 147 Oh St, 119, 33 O. O. 275, the taxability of a transfer under a trust agreement by the terms of which the wife of the donor was to receive income and possible principal payments during the lifetime of the donor.

In this case, Carmi A. Thompson, on February 24, 1932, when sixty-two years of age and in good health, created a trust which provided that the trustee pay donor’s wife for her life the net income from the trust, and also pay her at any time such principal payments as it deemed necessary and proper. The trust further provided that if the wife predeceased the grantor, he should receive the income, and also provided, in the event of his wife’s and his death, for other income payments and principal distribution to other beneficiaries. The donor died ten years later.

The court held that this gift was not made in contemplation of death and was not a gift intended to take effect in possession or enjoyment at or after the donor’s death, and pointed out the markedly different facts in the Sherman and in the Thompson cases. In the Sherman case, the court stated, the donor created a revocable trust under which she, the donor, reserved and received for life the income and additional sums from the corpus necessary for her support, with the remainder to her two children at the mother’s death.

In contrast, the court reasoned in the Thompson case that the gift to the wife took immediate effect in enjoyment when the trust was created, irrespective of the date of the donor’s death, she to receive during her life the income and such part of the corpus as the trustee deems necessary for her support.

In another case, In Re Estate of Hazelton, 148 Oh St, 127, 35 O. O. 119, the court considered the taxability of four irrevocable trusts under §5332 GO, which were created on August 19, 1935, by Ben F. Hazelton, Jr. The settlor reserved no control whatsoever over the trust property. Both title and possession of the property passed immediately to the trustee. An advisory committee was named and authorized to exercise “its uncontrolled discretion” as to the distribution of income and principal to the beneficiaries. It was provided that the trusts should be terminated and final distribution made twenty years after the death of the principal beneficiary of the settlor’s son or of the settlor himself, whichever death should occur last.

It was conceded that under these trusts, the possession and enjoyment of the principal beneficiaries were immediate upon the establishment of the trusts, irrespective of the time of the settlor’s death, and that, hence, these successions were not taxable. It was argued, however, that as to the secondary beneficiaries, or remaindermen, the settlor’s gifts were intended to take effect in possession or enjoyment at or after the settlor’s death. In other words, the department argued, the gifts sought to be reached were the distributions of the corpus to be made at the termination of the trust» and that a present right to receive at some future time, even though vested, does not constitute present possession or enjoyment.

'The court did not follow this reasoning because it pointed out that each trust agreement expressly required -the trustee to pay to the principal beneficiary as much of the income and principal of the trust property as the advisory committee in its uncontrolled discretion should direct; and this manifestly could have resulted in the exhaustion of the trust property during the lifetime of the settlor. Furthermore, the court pointed out, each trust agreement expressly required the trustee to pay to the secondary beneficiaries, after the death of the principal beneficiary, as much of the income and principal of the trust property as the committee should direct— and this provision, too, could have resulted in the exhaustion of the trust property during the lifetime of the settlor.

The court likewise pointed out that the death of the settlor was not made a conclusive factor in determining the final distribution of any property remaining in the trust, since it would have been necessary for him to survive both his son and the principal beneficiary if his death was to be of importance in this respect. The settlor was in fact the first of the three to die.

The court, therefore, held, under the facts of this case, that the gifts were not taxable as successions intended to take effect in possession or enjoyment at or after the settlor’s death.

The Supreme Court of Ohio has not considered the tax-ability of a transfer of property by trust instrument when there is no right of a trustee to distribute and of a beneficiary to receive immediate income from the trust.

The exceptors claim that the Legislature, in providing for the taxing of a transfer “intended to take effect in possession or enjoyment at or after the death of the donor,” intended that phrase to relate to the present creation of a future interest, the possession or enjoyment of which comes into existence at the termination of a life estate reserved by the grantor. They argue that the phrase is intended to cover transfers in which the donor reserves an interest in part or in whole in the trust and transfers in which the donor retains power to revoke or control the trust, but is not designed to cover transfers which are absolute in their nature but under which the donee is not entitled to possession or enjoyment, as in the instant case, until at or after the death of the donor. They contend that the accumulation of income under the terms of the trust under consideration for future distribution to them was an enjoyment by them of the income.

The Department of Taxation, on the other hand, contended that the transfer in the instant case was intended to take effect in possession and enjoyment at the death of the donor because neither the income nor corpus in the trust estate were payable under the terms of the trust agreement to the beneficiaries during the life of the donor and it was impossible for the beneficiaries to have either the possession or the enjoyment of the trust estate prior to the donor’s death. The department also contends that the donor did not completely relinquish control over the estate prior to her death, because she retained the right to require the trustee to resign and to enlarge or restrict the trustee’s powers to invest and reinvest.

Certain cases, such as the case of Chase, Admr. v. Commissioner of Taxation, 226 Minn. Reps. 521, 33 N. W. (2d) 706, support the views of the Department of Taxation. In that case, the settlor created trusts providing that the net income therefrom be paid to designated children, and, upon her death, the trusts were to terminate and the entire trust estate be paid over to the named child, if he or she survived settlor. If the child did not survive, provisions were made for paying over the corpus of the trusts to other issue.

The commissioner contended that since full possession and enjoyment of the principal did not pass to the children until the death of the donor, the transfers made were intended to take effect in possession or enjoyment at or after the death of the donor, and hence, upon her death, became subject to tax.

The court, in considering the question before it, carefully reviewed cases which hold such transfers to be taxable on the ground that the statutory expression “intended to take effect in possession or enjoyment” has reference to the donee’s acquisition of final and complete title, rather than to the action of the donor in divesting himself of power and control at" the time the transfer is made.

The court also reviewed those cases which held that such trusts are not taxable on the ground that they are intended to take effect in possession or enjoyment at or after the death of testator, in which cases it is reasoned that the title and possession of the corpus immediately following transfer become vested in the trustee and the beneficiaries together, so that neither possession nor enjoyment thereof are contingent upon the death of the donor.

The court, in conclusion, held that the transfer was intended to take effect at or after the death of the donor, because the remainderman, under the provisions of the trust, did not have “either possession or right of possession, two essentials of perfect title” until the donor’s death, and further held that a remainder is an estate or interest “to take effect in possession or enjoyment upon the determination of a prior estate.” The court reasoned that “in the very nature of the thing, the remainderman’s real succession can come only upon and by reason of the death of life tenant.”

For similar holdings see Estate of Madison, 26 Cal. (2d) 453, 159 Pac. (2d) 630; Bethea v. Sheppard, 143 S. W. (2d) 997; State St. Trust Co. v. Treas., 209 Mass. 373, 95 N. E. 851; Re Hollander, 123 N. J. Eq. 52, 195 A. 805.

Other cases follow the reasoning of the exceptors. For instance, in the case of Kirby’s Estate, 239 N. Y. Supp. 390, Isabelle C. Kirby, the decedent, executed a deed of trust for the use and benefit of her granddaughter. The trustees were to invest the principal, and during the lifetime of the donor accumulate the income and add it to the principal and after the death of the donor to apply the same toward the support, maintenance and education of the granddaughter until she arrived at the age of twenty-one years, after which age she was to receive the net income from said trust for her life with a power of appointment to distribute the principal to her heirs. In the event of the death of the beneficiary without issue before the donor, the trust fund was to revert to the donor.

The court held that this was not a transfer made with the intention to take effect in possession or enjoyment at or after the death of the donor, because both possession and enjoyment of the fund passed from the donor, and the granddaughter acquired no new or additional interest by the death of the decedent, and no right passed at the death of the donor. Possession, under the terms of the trust, passed to the trustees for the beneficiaries, and the grantor clearly intended the transfer to become effective when she executed the deed of trust.

The Supreme Court of Pennsylvania, In re Glosser’s Estate, 355 Pa. 210, 49 Atl. Rep. (2d) 401, considered the taxability of an irrevocable inter vivos trust in which no income from the trust was immediately distributed to the beneficiaries, and in which provision was made for the distribution of the principal and accumulated income to the beneficiaries at the expiration of fifteen years. The donors themselves acted as trustees. The court held that if there is no reservation by the donor of the trust of a right to the income himself from the trust during his life, if the donor has not retained any power of revocation or amendment whereby he may reassert dominion over the trust property, and if he has divested himself absolutely of all title to the property on execution of the trust instrument, the transfer is a perfected gift inter vivos, and, therefore, is not subject to transfer inheritance tax as being effective in possession or enjoyment until at or after the death of the donor.

The court, in making its decision, reasoned as follows: “The criterion is not whether the beneficiaries are to acquire actual possession or enjoyment at or after the death of the donor but whether the latter has irrevocably parted with all his interest, title, possession and enjoyment in his lifetime. From this it follows that the fact that income, which is vested in the beneficiaries, is to be accumulated and not paid to them until after the donor’s death does not make the gift subject to the tax as one intended to take effect in possession or enjoyment until after such death.”

The Supreme Court of Illinois, in People v. Northern Trust Co. et al., 330 Ill. 238, 161 N. E. 525, in considering whether certain trust deeds were taxable as. transfers intended to take effect in possession or enjoyment at or after the death of the grantor, held as follows:

“Postponement of enjoyment by beneficiaries did not make transfers under trust deeds subject to inheritance tax * * * where interests, though not in actual enjoyment of the beneficiaries because grantor provided that income should accumulate for certain period, were vested in beneficiaries at dates of execution of deeds.”

In the case of Shukert et al. v. Allen, Collector, 273 U. S. 545, the court considered the taxability of a conveyance of certain securities made before the testator’s death under the provisions of the Revenue Act of 1918, which provided that “to the extent of any interest therein of which the decedent has at any time made a transfer, or with respect to which he has created a trust, in contemplation of or intended to take effect in possession or enjoyment at or after his death,” a tax is laid upon the transfer of the net estate. •

The court held that “a conveyance of securities made before the testator’s death and not in contemplation of it, in trust to accumulate the income until a distant date specified, and then to divide the fund among his children, designated by name as the beneficiaries, vested the interests of his children when it was executed and was not ‘intended to take effect in possession or enjoyment at or after his death,’ within the meaning of Sec. 402(c), Revenue Act of 1918.”

The court, on page 545, held that the transfer in this case was immediate and out-and-out, leaving no interest remaining in the testator. And, on page 548, the court said “it seems to us tolerably plain, that when the grantor parts with all his interest in the property to other persons in trust, with no thought of avoiding taxes, the fact that the income vested in the beneficiaries was to be accumulated for them instead of being handed to them to spend, does not make the trust one intended to take effect in possession or enjoyment at or after the grantor’s death.”

In Fifth Ave. Bank of New York v. Nunan, 59 Fed. Supp. 753, the court considered the taxability of a transfer in which it was possible for all of the beneficiaries to have predeceased the trustor, with a further possibility that, in that event, the corpus and accumulated income of the trust would be returned to the settlor or pass as part of his estate, and the court held that “The mere possibility that as matter of law and not by terms of trust agreement, if all named remaindermen predeceased settlor or the life beneficiaries, corpus would be returned to settlor or pass as part of his estate, is too remote to include such transfer within settlor’s estate for estate tax purposes.”

In this case the court also considered the effect of provisions in the trust relating to the power of the settlor to control certain actions of the trustee, and the court held that “A settlor’s reservation of right to amend trust provisions relating to investment policy to be followed by trustee did not make trust taxable where power to amend was not for settlor’s own benefit, but merely to permit him to change investments for benefit of named beneficiaries.”

In the case of Reinecke v. Northern Trust Co., 278 U. S. 339, the testator in his lifetime established trusts in which life interests were to terminate five years after his death, or on the death of the designated beneficiary should he survive that date, with remainder over. He reserved to himself power to supervise reinvestment of the trust funds, to require the trustee to execute proxies to his nominee, to vote shares of stock held by the trustee and to control leases executed by the trustee; and he also reserved power to alter, change or modify each trust, which was to be exercised by himself and the beneficiary of each trust, acting jointly.

The court held that the section of the Revenue Act including the above language was inapplicable to such a trust created by a decedent in his lifetime, not in contemplation of death, which vested beneficial interests in others and which he was without power to modify or revoke except with the consent of the beneficiary.

Since the shifting of the economic interest in the trust was complete when the trust was made, a reservation to the settlor of power to manage the trust will not render the transfer taxable.

The donor having parted with the possession and his entire beneficial interest in the property when the trusts were created, the mere passing of possession or enjoyment from the life tenants to the remaindermen after his death, as directed, and after the enactment of the statute, was not within the taxing provisions of the law.

The court, on page 347 of the opinion, stated that "one may freely give his property to another by absolute gift without subjecting himself or his estate to a tax, but we are asked to say that this statute means that he may not make a gift inter vivos, equally absolute and complete, without- subjecting it to a tax if the gift takes the form of a life estate in one with remainder-over to another at or after the donor’s death. It would require plain and compelling language to justify so incongruous a result and we think it is wanting in the present statutes.” (Emphasis ours.)

As originally passed (R. S. 2731-1, Sec. 1) provided that all property within the jurisdiction of the State of Ohio passing by deed, grant, sale or gift made or intended to take effect in possession or enjoyment after the death of the grantor, to any person in trust or otherwise (other than to or for the use of certain named relatives) was liable to a succession tax. This section was amended into §5332 GC, (Ohio Laws, Vol. 108, Pt. 1, 563), its present form, on May 8, 1919, effective June 6, 1919, providing for a succession tax to be levied upon property passing in trust or otherwise, to or for the use of a person, institution or corporation when the transfer is by deed, grant, sale, assignment or gift without a valuable consideration substantially equivalent in money or money’s worth to the full value of such property * * * intended to take effect in possession or enjoyment at or after such death.

We have been unable to ascertain, by reported cases or otherwise, what, if any, additional significance the Legislature intended to ascribe to the fixing of a tax on a transfer of property intended to take effect in possession or enjoyment at as well as after the death of the transferor. Generally, the word “at” in a phrase fixing the time within which something should be done means the same as “about” or “after.” 4 Words and Phrases 640. We believe the Legislature, in amending the statute, merely adopted the nomenclature used in similar existing statutes of other states and did not intend to extend or change the operation of the statute by including the words “at or” immediately before the word “after.”

We have studied carefully reported cases in an attempt to determine if it was or was not the intention of the Legislature to tax under the inheritance tax laws of Ohio an estate transferred through the medium of a trust instrument which by its terms irrevocably transfers property to a trustee, but postpones, until the death of the donor, the actual transfer of the property and income therefrom to named beneficiaries.

We have considered the meaning of the words “possession” and “enjoyment” used in §5332 GC.

The word “possess” is frequently used in the sense of “own” or “entitled to.” Brantly v. Kee, 58 N. C. 332; Thomas v. Blair, 35 So. 811, 111 La. 678.

The term owner and owning depend somewhat for their signification upon the connection in which they are used. To own is defined “to hold as property; to have a legal or rightful title to; to have; to possess,” and an “owner” is “one who owns; a rightful proprietor.” An owner is not necessarily one owning the fee simple, or one having in the property the highest estate it will admit of. One having a lesser estate may be an owner, and indeed, there may be different estates in the same property vested in different persons and each be an owner thereof. In the construction of statutes, to ascertain the proper meaning of such terms, regard must be had to their various provisions, and such effect given them as these provisions clearly indicate they were intended to have, and as will render the statute operative. Baltimore & Ohio Railroad Co. v. Walker, 16 N. E. 475, 45 Oh St 577, 585; Choteau v. Thompson & Campbell, 2 Oh St, 114; Dutro v. Wilson, 4 Oh St, 102; Jones v. State, 70 N. E. 952, 70 Oh St 36.

The language in a will wherein testator did “give and bequeath all the property of which I may die possessed” was held to have passed the vested remainder of testator in property, and the word “possessed” was not used by the testator to confine the disposition of the estate only to such property as the testator physically possessed or possessed in actual enjoyment, since “possessed” is a word which can be and often is employed to denote ownership. Walker v. Shugert, 141 A. 261, 292 Pa. 433.

“Enjoyment” is synonymous with comfort, consolation, contentment, ease, happiness, pleasure and satisfaction. National Surety Co. v. Jarrett, 121 S. E. 291, 95 W. Va. 420.

Under trust for benefit of minor providing for accumulation of income for minor’s benefit and payment of net income after reaching majority, “accumulation,” which is withholding of income of minor for purpose of creating an increased fund, could be applied for infant’s support and education, and payment thereof need not be deferred, since beneficiary acquired a vested estate in accumulations passing under laws of intestacy or wills and was entitled to the “enjoyment” thereof, which is a term of general description, meaning to be held as any benefit or to possess. In re Kirby’s Estate, supra.

In the Sherman case, as pointed out by the court, the donor, by the fixed terms of the trust instrument, retained the full enjoyment of the trust estate and there could be no enjoyment thereof until the death of the donor, which accounted for the taxability of the transfer in donor’s estate. In the Thompson case, in which an irrevocable trust was created for the primary benefit of the donor’s wife and children with payments to the beneficiaries of income and such part of the principal as the trustee deemed necessary, the court held the transfer was not taxable because “the gift to the wife took immediate effect in enjoyment when the trust was created, irrespective of the date of the donor’s death.” In the Hazelton case, the court concluded that a transfer of property as a gift by means of a trust inter vivos was not taxable as a succession in the absence of evidence showing an intention by the settlor to accomplish a testamentary disposition of his property taking effect at or after his death.

A review of all of the above cases leads us to the conclusion that, under the Ohio law, a transfer of property, made before the testator’s death, not in contemplation of it and not intended to accomplish a testamentary disposition of his property, when made by means of an irrevocable gift in trust with provision that the trustee accumulate the income and pay the accumulated income and corpus to named beneficiaries at or after the donor’s death, does not subject the trust to a tax as a transfer intended to take effect in possession or enjoyment at or after the grantor’s death.

When, therefore, in the instant case, Emilie L. Heine transferred securities to The Lincoln National Bank by the terms of the outlined trust, she irrevocably parted forever with all of her interest, title, possession and enjoyment in those securities. Her retention of the right to require the trustee to resign and to enlarge or restrict the trustee’s powers to invest and reinvest trust corpus was for the benefit of the beneficiaries and does not affect the taxability of the trust gift.

Mrs. Heine’s gift was not made in contemplation of death and was not intended to accomplish a testamentary disposition of her property. At the instant her gift was completed, both possession and enjoyment of the transferred securities and all right to the income therefrom passed from her to her trustees for the benefit of her children and others. No additional right passed at her death. The gift was intended to take effect, and did take effect, in possession and enjoyment immediately when made and not mediately at or after her death.

The exceptions of the executor and heirs of decedent, therefore, are sustained.


author: By THE COURT.

text:
    JOHNSON, Plaintiff-Appellant, v. CAMPBELL et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4564.
    Decided March 22, 1951.
    A. A. Bunner, Russ Bothwell, Columbus, for appellant.
    Dargusch, Caren, Greek & King, John Caren, of Counsel, Columbus, for appellees.
   OPINION

By THE COURT.

Submitted upon motion by the defendants-appellees seeking an order dismissing the appeal for the reason that the order from which the appeal is taken is not a final order. The record reveals that on January 17, 1951, the Court sustained a demurrer to the petition allowing the plaintiff-appellant to file an amended petition within rule. Instead of so doing a notice of appeal was filed without an order dismissing the action. An order sustaining a general demurrer to the petition without dismissing the action is not a final order. Davis v. Moor, 86 Oh Ap 213. The motion will be sustained.

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


text:
    JOHNSON, Plaintiff-Appellant, v. CAMPBELL et, Defendants-Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4613.
    Decided September 12, 1951.
    A. A. Bunner, Russ Bothwell, Columbus, for plaintiff-appellant.
    Dargusch, Caren, Greek & King, John Caren, of Counsel, Columbus, fon defendants-appellees.
   OPINION

By THE COURT.

Submitted upon motion by the defendants-appellees seeking an order dismissing the appeal on questions of law and fact for the reason that there was no trial on factual issues in the court below. The record reveals that the action was one for damages for the issuing of certain libelous statements; that on January 17, 1951, the trial court made an order sustaining a demurrer to the petition for the reason that it did not state facts showing a good cause of action; that upon the plaintiff not desiring to plead further the court entered an order dismissing the petition and rendering judgment for the defendants-appellees. Since the ruling of the court upon the demurrer was based upon questions of law only the motion is well taken. LeMaistre v. Clark, 142 Oh St 1.

It should be noted also that this is not a chancery case and therefore this court has no jurisdiction to entertain such an appeal. The motion will be sustained, but as required by §11564 GC the cause will be retained for determination on questions of law only. The appellant will be granted leave to perfect such appeal in accordance with supplement to Rule VII of this court.

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


author: By MATTHEWS, J.:

text:
    DUNAWAY, Plaintiff-Appellee, v. TORLINE et, Defendants-Appellants.
    Ohio Appeals, First District, Hamilton County.
    No. 7462.
    Decided October 29, 1951.

      Cedric Vogel, Cincinnati, for plaintiff-appellee.
    Charles S. Furber, Jr., Joseph Lemkuhl, Cincinnati, for defendants-appellants.
   OPINION

By MATTHEWS, J.:

This action to recover under the Price Control Act, (Sec. 205 of United States Public Laws, passed by Eightieth Congress) because of an alleged rental charge in excess of the maximum fixed under Section 204 of that Act, was begun by George Dunaway and Dolores Dunaway. There have been two trials, resulting in each instance in a verdict against the defendants.

At the first trial, it developed that George Dunaway was a minor at the time the action was filed and at the time of trial. Inasmuch as George, Dunaway had not acted through a next friend or guardian ad litem, the Court was of the opinion that the action had not been properly filed as to him. However, he allowed the trial to proceed as to Dolores Dunaway. On the motion to set aside the verdict and for a new trial, the Court concluded that inasmuch as George Dunaway, the minor plaintiff, had verified the petition, and the action had been improperly filed as to him, it was necessary for him to set aside the verdict and he did so on that ground, and also on the ground that the verdict was manifestly against the weight of the evidence. An order was made dismissing the action as to George Dunaway and allowing it to remain pending with Dolores Dunaway as the sole plaintiff.

In the petition filed by Dolores Dunaway and George Dun-away, they alleged that they had rented the premises from the defendants. After the dismissal of the action as to George Dunaway, Dolores Dunaway filed an amended petition in which she alleged that she had rented the premises.

The appellants contend that the court erred in not dismissing the action as to Dolores Dunaway, as well as to George Dunaway, when it was discovered that he was a minor. We do not stop to consider whether the court would have erred in dismissing the action as to George Dunaway, if he had objected to such action. The fact is that he did not object, and is not now objecting. The case, therefore, stands as though two persons conceiving that they have a joint action, and, upon discovering that one has no right, that one voluntarily withdraws, leaving the action to proceed on behalf of the sole owner of the chose in action. There is no error in this, but the remaining plaintiff would be obliged, of course, to prove sole ownership. We have examined the evidence on this point and find that Katherine Torline testified that all the negotiations for the rental of the premises were conducted between her and Dolores Dunaway, and that the rental was to Dolores Dunaway. The defendants made no effort whatsoever to qualify this. We, therefore, find that George Dun-away was not a necessary party to this action.

There is no evidence that Dolores Dunaway did not authorize the filing of the original petition in this case. It was signed by a duly licensed attorney-at-law, as her attorney. The presumption is that he was duly authorized by her. Summons was duly issued on it. That constituted the commencement of the action. The fact that the verification was defective did not destroy its character as a petition. If no verification had been attached, it would still have been a petition. Such defects may be cured by amendments.

The action having been commenced on the 5th day of August, 1948, and the last alleged excess payment of rent having been made on the 16th day of June, 1948, the action was commenced well within the statutory period after such last payment. No matter how the statute is construed, the amount of the recovery in the case is well within the breaches that occurred within the period of limitation.

We, therefore, conclude that whatever claim the plaintiff has is not barred by the statute of limitations.

The defendants acquired the title to this building, of which the room or apartment rented by plaintiff was a part, in 1945. This apartment or a part of it, known as “Apartment 2” had been leased by the prior owner for $7.50 per week. It, however, was unoccupied at the time of defendants’ purchase of the premises. It is undisputed that the defendants enlarged it to double its former size, put in a new General Electric Refrigerator, new linoleum, bed-room and living-room furniture, painted the apartment, put in a new sink, with hot and cold running water. The defendants notified the Office of Price Administration and were told to establish their own rent, and then bring down evidence of their expense of remodeling, and they would be told what amount to register it for.

During the making of these improvements, the plaintiff occupied another apartment in the same building and knew at least something of the improvements as they progressed and when defendant Katherine Torline returned from notifying the Office of Price Administration she had a conversation with the plaintiff, resulting in the plaintiff offering to pay $15.00 per week, which the defendants accepted. The plaintiff moved in and paid $15.00 per week for almost two years, when a disagreement arose about something other than the amount of the rent and the plaintiff vacated the premises. About two months thereafter, this action was filed to recover treble the difference between $7.50 and $15.00 per week for the entire period of plaintiff’s occupancy and attorney’s fees under the United States Rent Control Act.

After this action was filed, the defendants filed a registration of this apartment at $15.00 per week. The rent inspector inspected the apartment and approved the rental. So whatever action that was taken by the Office of Price Administration was in approval of this rental charge. However, the Rent Expediter took no affirmative action. It was at the suggestion of the inspector that the apartment was treated as a new unit and given a new designation (2-A) upon the records of the Rent Area Office.

The jury found for the plaintiff for the amount of the actual difference and awarded no penalty or attorney’s fees. Judgment was rendered on the verdict.

It is from that judgment that this appeal was taken.

Various errors in the general charge and in the giving of two special charges are assigned. An examination of these special charges and the general charge discloses that they contain correct statements of the law to guide the jury in deliberating upon a case where the issue is whether the defendants had charged in excess of a maximum rent fixed by the Housing Expeditor. The difficulty with the charge is that if the record presents that kind of a case there was no issue of fact to submit to the jury excepting whether treble damages and attorney’s fees should be awarded, for the reason that if the rent charged for one-half of this apartment was to govern the maximum rent, the amount collected by defendants of $15.00 per week was just twice the permissible rent. The amount of the excess would have been a mere matter of mathematics and the court should have instructed the jury that in any event the plaintiff would have been entitled to that amount within the statutory period of limitation, leaving only the issue of 'what, if anything, should be added as a penalty or for attorney’s fee.

But, as we view the record, the issue was not that simple. The whole contention of the defendants was that they had enlarged and made substantial improvements in “Apartment 2” at considerable expense, which entitled them to an increase in rent, that they had notified the proper authorities, had fixed the rent as they had a legal right to do, and finally had registered it with the Rent Control Office, which had approved it as, in effect, a new and different housing unit. This position of defendants was emphasized by motions for an instructed verdict and by a request at the close of the general charge for a further charge that “The rental approved by the Area Rent Office is the valid rent for Apartment 2-A and dated back to the time the apartment was first rented and that no disapproval having been made by the Area Rent Office the amount of $15.00 was the correct rental for Apartment 2-A.” The Court refused to so charge and that is assigned as error.

It is manifest that the remodeling of Apartment 2 and transformation of it into Apartment 2-A on the records of the Area Rent Office is the vital fact upon which the rights of the parties turn. It is equally manifest that the maximum rent fixed by the Housing Expediter for Apartment 2 is not controlling as the maximum for the remodeled and enlarged Apartment 2-A.

Now what is the law and procedure regulating the maximum charge for an apartment after it has been remodeled, enlarged to twice its original size?

It is clear that no authority has been conferred upon the Courts to fix a maximum rent. Indeed under the Constitution, no such authority could be conferred. It (fixing a maximum rent) is no more a judicial function than is the fixing a tax rate or a public utility rate. The authority over such matters is conferred upon the other departments of government. Under the Rent Control Act Congress has delegated this power to the Housing Expediter, with appeal from his decision to an administrative board.

In Priedlander & Curreri on Rent Control at 193, speaking of the action of a tenant for treble damages because of a charge in excess of the maximum rent, based on reduced facilities, the authors said: “Such an action will not lie until the Federal rent control authorities have fixed a reduced maximum rent for the premises, since only such authorities have jurisdiction to prescribe decreased rents. The courts may not undertake to perform this function in place of the authorized administrative officials.” Here the authors were applying a general fundamental principle to a specific situation.

The judicial action must be based upon prior administrative action, and to enforce such administrative ruling, except in such cases as the administrative action, accomplished or threatened, is so arbitrary and confiscatory as to constitute the taking of property without due process of law, in violation of the 5th Amendment of the United States Constitution.

It is clear that the rent collected by a prior owner for apartment 2 is not the maximum rent fixed by the Expediter for Apartment 2-A, created by enlargement and improvements of a capital nature. Whatever action that was taken by the Expediter’s Office indicates his approval of a maximum rent of $15.00. If such action was a fixing of $15.00 as the maximum rent, then there was no overcharge. If the action falls short of fixing a maximum rent, then further action by the Rent Control Administration was necessary before the court would have jurisdiction to entertain an action by the tenant to recover the amount of any excessive charge.

No matter how this situation is viewed, the defendant, at least, had a right to have the Rent Control Office determine whether the improvements and modifications constituted a major capital improvement, justifying an increase in the maximum rent, and until such ruling no action could be maintained by the tenant in any court to recover an excess of payment.

In O. P. A. Rent Control Guide Book, at page 200:806, it is said in “Interpretation- No. 9” headed “Determination of ‘Major Capital Improvement’ ” that “Where housing accommodations have been substantially changed — by a major capital improvement — the maximum rent is the first rent after such change.”—

“Under Section 5 (c) (1) the rent director may decrease this maximum rent to the rent generally prevailing in the Defense Rental Area for comparable housing accommodations on maximum rent date.”—

“Under the Regulations Orders in adjustment proceedings are not retroactive.”

While subsequent legislation has made the order of the Housing Expediter reducing the rent is fixed by the landlord after the major capital improvement retroactive, we know of no legislation withdrawing from the landlord the right to fix the maximum rent of a new housing unit or a unit transformed by a major capital improvement, subject, however, to an obligation to refund in the event that it should be determined by the Rent Control Office that the rent so fixed was excessive.

As already noted, the Rent Control Office has not determined that $15.00 per week was an excessive rent. Indeed, the landlord proceeded to fix the maximum rent under instructions from the Rent Control Office, and that office has never questioned its validity. In this situation, it is our opinion that the plaintiff has no cause of action. If the plaintiff is entitled to any relief, it should be sought by action of the Rent Control Office, and not in the judicial courts.

For these reasons, the judgment is reversed, and the cause remanded, with instructions to dismiss the action.

HILDEBRANT, PJ, MATTHEWS & ROSS, JJ, concur in opinion & judgment.


text:
    KILGOUR, Estate of, In re: DEPARTMENT OF TAXATION, Appellant, v. TOLBERT, Extrx., et, Appellees.
    Ohio Appeals, Second District, Franklin County.
    No. 4521.
    Decided February 13, 1951.

      Herbert S. Duffy, Atty. Geni., C. William O’Neill, Atty. Geni., Robert E. Younger, James M. Burtch, Jr., Asst. Attys. Geni., Columbus, for appellant.
    Noel L. Greenlee, Allen I. Pretzman, Columbus, for appellees.
   OPINION

By HORNBECK, PJ.

This is an appeal on questions of law from a judgment of the Probate Court sustaining exceptions to its former order assessing inheritance tax upon transfers of certain property of Lyman B. Kilgour to the appellees herein.

The transfers were made on January 6, 1947. Lyman B. Kilgour died on July 31,1948. His estate aggregated $274,610.29. At the time of the transfers Lyman B. Kilgour owned 498 shares of common, no-par stock of the B. & T. Metals Company, Columbus, Ohio. The transfers were:

50 shares to Mabel Kilgour, wife $55,250.00
50 shares to Virginia Tolbert, daughter 55,250.00
50 shares to Sarah Elizabeth Fox, daughter 55,250.00 50 shares to L. Tolbert, son-in-law 55,250.00
25 shares to Anita Fox, granddaughter 27,625.00
25 shares to Joseph Fox, grandson 27,625.00

The transfer of the stock having been made within two years of the date of the death of decedent without valuable consideration must be deemed to have been made in contem plation of death within the meaning of §5332 et seq GC, unless shown to the contrary. This burden is upon the appellees in this case and was so recognized by the Probate Judge. Tax Commission v. Parker, 117 Oh St 215, 158 N. E. 89; Burton v. Tax Commission, 37 Oh Ap 183, 174 N. E. 361. The presumption attending by reason of §5332-2 GC that the transfers were made in the contemplation of death is rebuttable. Tax Commission v. Lamson, 43 Oh Ap 510, 183 N. E. 793.

Appellant, in its brief, succinctly presents the question for determination in this Court, viz., whether the exceptors sustain the burden of proof cast upon them by the provisions of §5332-2 GC. The facts developed in the hearing on the exceptions are not in dispute. Appellants urge that upon these undisputed facts the Probate Court arrived at an erroneous legal conclusion. The trial judge reached the conclusion that the transfers were not intended as a distribution of a part of Mr. Kilgour’s estate; that they were not made in contemplation of death. In thus concluding the issue, determination was made that the appellees upon the facts had met and overcome the presumption arising by reason of §5332-2 GC.

Counsel have briefed this case capably and at length and have cited most of the adjudications construing the inheritance tax section of the Code. Upon the factual development in the record, we see no new or different principle of law involved. The Probate Judge acted with full appreciation of the law controlling his judgment. The case required determination of inferences to be drawn from the facts and, in our opinion, the only question for determination here is whether the judgment of the Probate Court is against the manifest weight of the evidence.

Upon the issue whether Mr. Kilgour in making the transfers acted in contemplation of death, the Probate Judge was well within his rights in finding that such a state of mind did not actuate the gifts. When the transfers were made Mr. Kilgour was not quite fifty-nine years of age, active, vigorous, a hard worker, and interested in life and his business and intent on plans for his future. There is nothing in the record tending to prove that at the time of the transfers he had any intimation that he might soon die. No doctor or other witness says that he was afflicted with any observable sickness until months after the -transfers of the stock. He had not been under the care of a doctor for years prior to July, 1947. His attending physician testified that the cancer from which he eventually died probably formed some three months before July or August, 1947, when he had the first symptoms, and rapidly developed thereafter. There is nothing to refute this evidence although if claimed to be incorrect, the cause of death having been fixed, it could have been denied by expert testimony. Decedent made no will until just before leaving for a surgical operation in Cleveland in January, 1948. Decedent gave no intimation that he believed he would die until about one week before his death.

The record discloses cogent reasons tending to show that the transfers were not intended as a distribution of Mr. Kilgour’s estate. It is true that some, but not all, of the transferees were the natural objects of Mr. Kilgour’s bounty. This, in itself, is not unusual and though probative, in our judgment, would not be conclusive of an intended distribution of estate. Some of the transferees were known by Mr Kilgour to be in immediate need of financial aid. He was fond of his son-in-law, one of the transferees, and ambitious for his success. There were conditions indicating that the gifts were motivated by kindness or as gratuities.

Probably the principal reason moving Mr. Kilgour to make the gifts was the impending Federal Income Tax liability which he would be required to meet if he retained the stock upon which he knew a large dividend was to be declared. The reaction of the donor in making the gifts in the situation presented was normal and more consistent with an anticipation of continued living and the incidents thereof than contemplation of death.

We have before us the written opinion of Judge McClelland wherein he sets out fully the facts, draws conclusions therefrom and discusses Tax Commission v. Parker, 117 Oh St 215, and Tax Commission v. Robinson, 145 Oh St 55 and decides the issue in favor of appellees. Inasmuch as we are in agreement with Judge McClelland in his determination as to the exceptions, it would serve no good purpose to extend this opinion.

The judgment will be affirmed.

WISEMAN and MILLER, JJ, concur.