text:
    Smith et al. v. Hunter, Trustee, et al.

      Rule in will interpretation — That testator meant what he said — > Words “to the heirs at land’ include adopted child of beneficiary — i Although statute of adoption not in vogue — When will was executed — Law of wills.

    1. The rule that in the interpretation of a will the testator must be presumed to have meant what he said requires that a devise of a remainder “to the heirs at law” of a beneficiary for life be regarded as including an adopted child of the beneficiary, although there was not, when the will was executed, any statute for the adoption of children.
    2. In such case it is not required that the testator appears to have had the specific intention that the succession should be to an adopted child of the beneficiary for life if it appears that such child, it having been adopted in pursuance of laws enacted before the succession, is within the terms by which the testator declared his general intention.
    No. 12727
    Decided April 30, 1912.
    Error to the Circuit Court of Montgomery county.
    The judgment, whose reversal is sought, was rendered in the circuit court on appeal of the cause from the court of common pleas. Suit was brought by James B. Hunter, as trustee, under the will of Geórge W. Smith to obtain the judgment and direction of the court respecting the distribution of a fund in his hands, which was adversely claimed by persons whom he made defendants to the suit.
    George W. Smith died in Montgomery county, Ohio, in 1841, having executed his will in the preceding year. He devised the whole of his estate, both real and personal, to trustees for the benefit of his children, two sons and two daughters, Sophia and Louisa. The will directed with respect to the portions of his estate intended for the benefit of his sons that the trustee should convey the same to them in fee simple upon their attaining majority. With respect to the portions of his estate intended to be for the benefit of his daughters he directed that upon their arrival at age their portion should be set apart, but should still be held by the trustees in trust, the rents and profits only to be paid to them during life “with fee simple to the heirs of said daughters.” Except as to his household goods all property for the benefit of the daughters was given to the trustees with profits and income to the daughters for life, with remainder to their heirs at law.
    The controversy concerns the share which the trustee had held for the benefit of the testator’s daughter, Sophia, who was about ten years of age at the death of the testator. She afterward intermarried with Isaac H. Kiersted, whom she survived. They removed to Marion county, Indiana, where on September 16, 1876, they in pursuance to the laws of that state which give to an adopted child the same interest as a natural child in the estate of the parent, adopted the defendant in error, Hannah Moore Duthie. In both the states of Ohio and Indiana the statutes providing for the adoption of children were enacted after the death of the testator. Mrs. Kiersted never had issue of her body. She died in July, 1908. The fund held by the trustee for the benefit of the daughter, Sophia, during her life is now claimed, on the one hand, by her adopted daughter, Hannah Moore Duthie, and, upon the other, by her brother, George W. Smith, her sister, Louisa N. Fletcher, and Lida Manning Smith, the daughter of her deceased brother, James. The circuit court adjudged that the fund in the hands of the testator passes to the adopted daughter, Mrs. Duthie, and ordered its payment to her.

      Mr. W. Belville and Mr. D. B. Van Pelt, for plaintiffs in error.
    The absolute inability of the daughters to do anything with or in any way or manner to dispose of the corpus of the shares in which they had an interest to the extent of the net income is the keynote of this will as to the provision made for the daughters.
    This must be steadily borne in mind when we come to construe this word “heir” or “heirs” with reference to the “fee” that must be divided at. their death. Kiersted v. Smith, 8 N. P., 378.
    The principle which should guide the court in construing such words in seeking the intent of a testator was clearly stated by this court in the case of Schaefer v. Bernhardt, 76 Ohio St., 443.
    Let us look at this peculiar “heirship” which the Indiana act enabled “any person” to create. Our law merely recognizes the status which adoption under that act created. If we had no adoption act, no child adopted elsewhere could inherit property in Ohio, and the extent of its rights is measured by our own statute. Under our act (in fact, under both acts) such child is “heir” only in its relation as such child, and not only to such property as the adopting parent died seized of. It is a limited inheritance under that act, and not under the general statute of descent. Used as a general term descriptive of a class, the word “heirs” must mean “heirs” according to the general statute of descent and distribution.
    Property which an adopted child otherwise acquires can not go to its foster parents or brothers and sisters, but must go to its natural heirs, brothers and sisters, or others. Upson v. Noble, 35 Ohio St, 655.
    Such adopted child is not in law the “issue” of the adopting parents. It may inherit from such parent; but not through him from his ancestors. Phillips, Exr., v. McConica, 59 Ohio St, 1.
    Heirship by adoption ignores kinship. It is a strange, peculiar, anomalous, restricted heirship— an innovation upon the general line of descent— and in this case unknown to the law when the will was made, impossible then to foresee or imagine, introducing a stranger to all ties of blood, and plainly not within any general sense of the word “heirs” under the general statute, from which the word derived its meaning as' a general term descriptive of a class. Lathrop v. Young, 25 Ohio St., 451.
    Here there is no property to descend from Mrs. Kiersted to Mrs. Duthie. She cannot be an “heir” within the meaning of the adoption act. And not under that act, she cannot be an heir at all. As to this will and this property, it is the same as if that act “had never been passed.” Stewart v. Powers, 9 C. C, 143. .
    In the latter case proof was offered to show that the word as there used meant blood kin. In the case at bar no such proof was required. It could mean nothing else. Brower v. Hunt, 18 Ohio St., 311; Quigley v. Mitchell, 41 Ohio St., 375; Richardson v. Stockyard Co., 8 N. P., 213; Knese v. Hake, 16 O. D., N. P., 466; Theobald v. Fugman, 64 Ohio St, 473; Gibson v. McNeely, 11 Ohio St., 131; 1 Cyc., 932; Keegan v. Geraghty, 101 Ill., 26; Woodcock’s Appeal, 103 Me., 214.
    In the absence of circumstances tending to show that the testator anticipated the adoption, or knew that it had already taken place, and therefore probably intended to treat the person adopted as a possible beneficiary, the decisions generally exclude the adopted child from the benefit of the will. Van Matre v. Sankey, 39 Am. St. Rep., 226; Morrison v. Sessions’ Estate, 70 Mich., 297; Schafer v. Ernie, 54 Pa. St., 304; Russell v. Russell, 84 Ala., 48; Reinders v. Koppelman, 94 Mo., 338; Jenkins v. Jenkins, 64 N. H., 407; Commonwealth v. Nancrede, 32 Pa. St., 389; Sunderland’s Estate, 60 la., 732; Blodgett v. Stowell, 189 Mass., 142; Stout v. Cook, 77 N. J. Eq., 153; Lichter v. Thiers, 139 Wis., 481; Clarkson v. Hatton, 143 Mo., 52; Hockaday v. Lynn, 200 Mo., 456.
    On the principle involved here we cite also: Moore v. Moore, 35 Vt., 98; Van Derlyn v. Mack, 137 Mich., 146; Simpson v. Simpson, 9 C. C., N. S., 137.

      Mr. Murat W. Hopkins and Messrs. McMahon & McMahon, for defendants in error.
    Counsel for plaintiff in error admit that the status of Mrs. Duthie is determined by the law of Indiana. This status adheres to her in all other states, especially as we have a similar law in Ohio, and as Indiana, by express statute, establishes recognition of the Ohio law by comity. Section 8030, Revised Statutes of Ohio.
    Such position as Mrs. Duthie occupies in Indiana, she has in Ohio, subject to the laws of descent in Ohio. Ross v. Ross, 129 Mass., 243; Van Matre v. Sankey, 148 Ill., 536; Gray v. Holmes, 57 Kans., 217; Power v. Hafley, 85 Ky., 671; Melvin v. Martin, 18 R. I., 650; Simpson v. Simpson, 29 O. C. C, 503.
    A devise in trust, as in this case, creates an equitable estate in the land devised in the cestui que trust. Armstrong v. Zone’s Heirs, 12 Ohio, 287, cited 64 Ohio St., 512; Collier v. Grimesey, 36 Ohio St., 17; Isherwood v. Isherwood, 16 O. C. C., 279; Carter v. Reddish, 32 Ohio St., 1.
    Our supreme court has said on several occasions that the “intent of a testator is discovered not only by what he has said, but by what he has not said,” especially where the occasion was opportune. Hamilton v. Rodgers, 38 Ohio St., 255.
    No person had any vested interest in the estate created in Mrs. Kiersted outside of herself. The property was in trust during her life. Therefore, the legislature had the right to prescribe new rules of descent, create new heirships, and generally overturn, if it wished, the law of descent, so long as vested estates were not interfered with. Randall v. Kreiger, 23 Wall., 137.
    The donor was evidently interested in providing for the life beneficiary in a certain definite manner down to the moment of her death, and did so. But after that apparently he had no desire to limit the succession to his real estate to any particular line of persons.' He directed generally that it should go to her heirs at law; that is, to those persons whom the law should designate as her heirs when the time arrived. He threw the responsibility of selection upon the law. Gilliam v. Guaranty Co., 186 N. Y, 127.
    The word “heir” in its usual and technical sense, means such person or persons as would inherit property from Mrs. Kiersted, according to the law of descent prevailing at her death, if she died intestate and was seized in fee of the property in question. It is a general term. It described no particular individual or individuals, as of the time it was used. The heirs presumptive may never be the actual heirs. They may die, or the law of descent may be changed before the time comes for them to develop into heirship. As heirs presumptive they have no possible interest, which they could convey to a stranger. Needles’ Exr. v. Needles, 7 Ohio St, 432; Smith v. Smith, 57 Ohio St, 27; Barr v. Denney, 79 Ohio St, 358; Lavery v. Egan, 143 Mass, 392.
    To support our contention in favor of Mrs. Duthie, we cite the following cases in Ohio, as conclusive of her right: Weston v. Weston, 38 Ohio St, 478; Miller v. Miller, 29 O. C. C, 353, 77 Ohio St, 643.
    But Ohio does hot stand alone in such ruling. The following cases, outside of our state, are even more directly in point, if the question is to be settled as one of authority. Kohler’s Estate, 199 Pa. St, 455; Butterfield, v. Sawyer, 187 Ill., 598; Durbin v. Redman, 140 Ind., 694; Olney, Trustee, 27 R. I., 495.
   Shauck, J.

The conclusion of the circuit court that upon the death of Sophia C. Kiersted, the fund which the trustee had held for her benefit passes to her adopted daughter, and not to her brother, sister and her niece, is challenged by counsel for the plaintiffs in error in an argument which is very interesting and impressive. It is said, and truly, that upon the death of Mrs. Kiersted this portion of the fund passed under the will of George W. Smith, her father, and not under the statutes of descent and distribution as her property. This is obviously so, for by the very clear and explicit terms of the will her estate and interest in the fund were restricted to its income and to her life, and the testator himself disposed of his entire property and all interests and estates therein.

Our attention is, therefore, very properly directed to the ascertainment of the testator’s intention. In clear and comprehensive terms he gave his entire estate to trustees with direction that the portions thereof which were intended to be for the benefit of his sons should be delivered and conveyed to them in fee simple upon their attaining their majority, and the portion intended for the benefit of his daughters should be held by the trustees during the life of the daughters, the income only being payable to them, and that upon the death of a daughter the portion which had been so held for her benefit should pass “to her heirs at law.” It is said that the phrase so used by the testator to designate the person who should take the corpus of the fund in the circumstances which have now occurred could not have been intended by the testator to include an adopted child, because at the time of the execution of the will there was not, either in the state of Ohio where the will was executed or in the state of Indiana where the adoption occurred and the testator’s daughter died, any statute providing for the adoption of a child and giving to it capacity to inherit from the adopting parent; that the scheme' of the will shows the testator’s great solicitude for those of his own blood who have been excluded by the judgment of the circuit court, and that since the provisions of the will gave the daughters control of the income only of the property, leaving them without power to dispose of the corpus by either deed or will, the only modes of disposition which could have been in the contemplation of the testator, to permit it to be now carried to one not of the testator’s blood is to permit an evasion of his clearly indicated intention. Not only are these considerations urged with much vigor and impressiveness by counsel for plaintiffs in error, but they receive some support from observations made in some of the cases cited’ in their brief. These considerations, if accorded all the weight to which they seem to be entitled, justify the conclusion that the testator did not have the specific intention that upon the death of one of his daughters the fund which had been held by the trustees for her benefit should pass to a child which she had adopted. They may also start the conjecture that if the testator had anticipated the relation of parties which the case now presents he would have used different language to designate the persons to whom this fund should pass. But while the will shows that the testator had the usual concern of a father for his children, we do not observe that it contains any provisions indicating special concern for his descendants more remote than his sons and daughters. It does show so much solicitude for the comfort of his daughters during their lives that he placed the propertjr from which their support was to be derived beyond the chance of mismanagement by them, or by those who might acquire influence over them. The will suggests no other reason for limiting their control to the income of the property, while that intended for the sons was to pass to them in fee simple upon their attaining their majority. If one of the sons had died at' the time of the death of Mrs. Kiersted, leaving an adopted child, its right to inherit from the adopting father would not be seriously questioned, but the will contains nothing to indicate that in that regard the testator had different desires with respect to the provisions for his sons and his daughters. Terms limiting the succession to the daughter’s heirs at law, who should be of her blood, were omitted by the testator. If the court should supply them it would be amending his will rather than construing it. However confidently we might follow counsel in the conjecture that the testator would have used such terms if he had foreseen all that has now occurred, we should still be admonished that in ascertaining the meaning of a testator it is of first importance to assume that he meant what he said. The meaning of the phrase “her heirs at law” which the testator used to indicate his intention has not been changed since he used it for that purpose. It then meant, and it now means, those who by law might be entitled to succeed to the property of which she should die seized as of an estate of' inheritance. We must presume that the will was drawn with the knowledge that as the testator’s daughters were then living, they at that time had no heirs at law, that those heirs would be selected by the law in force at the time of their death, when for the first time they could have heirs at law. It must also have been comprehended that the laws of descent and distribution have been constantly subject to change throughout the ages which have intervened since the times when, without “the law’s delay,” the strongest man who happened upon the scene appropriated to himself the things which had been the subject of property in a deceased person. To the validity of the claim of the adopted daughter, it is not necessary that the testator should have had the particular intention that the fund should pass to a child by adoption. It is sufficient that she is the person designated by the law as the heir of the daughter and is thus within the terms of the gift over, the fund having accomplished the testator’s dominant desire that the daughter should have an assured support during her life. A statute is not more necessary to the heirship of an adopted daughter than to that of a person related by blood, and it seems to be' conclusive of this subject that the statute makes the adopted daughter of the testator’s daughter her heir, while there is no statute which in these circumstances gives that character to the plaintiffs in, error.

Judgment affirmed.

Davis, C. J., Johnson, Donahue and O’Hara, JJ., concur.


source: Caselaw Access Project

author: Spear, J.

license: Public Domain

text:
    The American Steel Packing Company v. Conkle.

      Presentation by court of written instructions to piry — On matters of law — Section 5190, Revised Statutes — Instructions should not be excessive in repetition — May be prejudicial, when.

    The right given counsel by the provisions of section 5190, Revised Statutes, to present to the court written instructions on matters of law,'and request that they be given to the jury before argument to the jury is commenced, should be exercised reasonably. The instructions thus requested should be neither excessive in number or length, nor should they be, to an unreasonable degree, repetitions of the same legal proposition. The giving of instructions which offend against either of these objections is an abuse of discretion, and is error which, when clearly prejudicial, will justify a reversal of a judgment obtained by the party thus asking the instructions.
    No. 12288
    Decided April 30, 1912.
    Error to the Circuit Court of Defiance county.
    Facts are stated in the opinion.

      Mr. Henry B. Harris, for plaintiff in error.

    The statutory provision that on request, instructions- must be given before argument, we believe is designated to give counsel opportunity to marshal, array and argue the facts and circumstances developed by the evidence and claimed to be favorable for his client under the rules of law proper to be invoked in the consideration and weighing of the evidence, and in reaching a decision thereon. Pleasants v. Pant, 22 Wall., 116; Texas & P. Ry. Co. v. Rhodes, 18 C. C. A., 13.
    It was in line with these principles and rules that this court reversed the judgment in the case of C. C. & C. Rd. Co. v. Terry, 8 Ohio St., 570, because of the lack of specific instructions and rules for the application of the facts to the law. Sawyer v. Hannibal & St. Jo. Rd. Co., 37 Mo., 240, 90 Am. Dec., 387.
    The circuit court’s only ground of criticism was that the court of common pleas gave to the jury “numerous requests on behalf of the defendant to charge on special features of the case unduly emphasizing them by repeated statements in varying forms.” Section 5190, Revised Statutes; Lewis v. State, 4 Ohio, 389; Taft v. Wildman, 15 Ohio, 123; Jones v. State, 20 Ohio, 46; Lytle v. Boyer, 33 Ohio St., 506; Coal Co. v. Estievenard, 53 Ohio St, 59; C. P. & E. Rd. Co. v. Nixon, 12 O. C. D., 79, 68 Ohio St., 651; Cone & O’Dell v. Bright, 68 Ohio St., 543; U. S. B. & P. Co. v. Browne, 15 O. C. D., 347.
    There is no limitation or condition in the statute to the effect that instructions requested shall not be given if some certain facts or theories are set forth which have been set forth in substance in others. An examination of the twelve instructions, which this court, in the Estievenard case, said should have been given, affirmatively pronounces against such limitation or condition. As we read these instructions, eight out of twelve were more clearly repetitions than any two out of the fifteen in the case at bar. L. & N. Rd. Co. v. Morlay, 30 C. C. A., 6, 86 Fed. Rep., 240; Smart v. Masters & W., etc., 17 O. C. D., 273, 73 Ohio St., 387; W. U. Tel. Co. v. Morris, 44 C. C. A., 350, 105 Fed. Rep., 49; Rolling Mill Co. v. Corrigan, 46 Ohio St., 294.
    Even for needless repetition a judgment will not be reversed where the record shows the verdict is sustained by clear preponderance of the evidence. Lawder v. Henderson, 36 Kans., 754, 14 Pac. Rep., 164; Cin. Trac. Co. v. Baron, 76 Ohio St., 599; 2 Thompson on Trials (2 ed.), See. 2402; Murray v. New York, etc., Rd. Co., 103 Pa. St., 37; Blake v. Stump, 73 Md., 160, 20 Atl. Rep., 788, 10 L. R. A.; 103; Terry v. Davenport, 170 Ind., 74, 83 N. E. Rep., 636.
    When the instructions were asked plaintiff’s counsel objected to them, because “court arid counsel could not examine them in a reasonable time.” This the court overruled. No fact is set forth tending to show the court erred in this ruling, and the circuit court holds it did not. So far as the record shows court and counsel may have had two days to examine these instructions. In any event the objection is not well grounded in law. McCaleb v. Smith, 22 Ia., 242; Andrews v. Runyon, 65 Cal., 629; State v. Schiller, 70 Ohio St, 1.
    Where instructions correctly stating the law possess any misleading tendency, it is the duty of the adverse party to meet them by a counter or explanatory charge. Dickens v. Murray & Peppers, 163 Ala., 556, 50 So. Rep., 1019; Tennessee Coal & I. Co. v. Williamson, 164 Ala., 57, 51 So. Rep., 144; Doll v. State, 45 Ohio St., 444.

      Mr. T. T. Ansberry; Mr. George T. Farrell and Mr. Robert Newbegin, for defendant in error.
    The circuit court held correctly that it was error to give the special requests. Again and again these requests single out a particular aspect of the case, to-wit, that the accident may have been caused by the breaking of the spring, and reiterate to the jury in fifteen elaborate charges that there could be absolutely no recovery if the defendant was not negligent in that particular respect.
    This dwelling at such length and in such monotony of form on one or two elements of the case, on each of which the jury was instructed over and over again that the plaintiff could not recover under the special circumstances named, must have entirely confused the matter in their minds. Interurban Ry. & Term. Co. v. Broadus, 82 Ohio St., 396.
    So it is improper to single out the plaintiff’s case element by element, negativing each one separately, or to single out and dwell on portions of the testimony, as these special instructions did on the fact of the breaking of the spring and the alleged inspection by the defendant. L. S. & M. S. Ry. Co. v. Whidden, 23 C. C, 85; Graves v. Colwell, 90 Ill., 612; Hartshorn v. Byrne, 147 Ill., 418; Chesney v. Meadows, 90 Ill., 430; Johnson County Bank v. Walker, 82 Conn., 24; Minn. Gen. Elec. Co. v.
      Cronon, 166 Fed. Ref)., 651; L. & N. Rd. Co. v. Price, 159 Ala., 213, 48 So. Rep., 814; MacKinnon Boiler, etc., Co. v. Land Co., 156 Mich., 11.
    And by these instructions, particularly by Nos. 5, 9, 10, 11, 25 and 26, the court narrowed the case and withdrew all question of negligence in failing to warn the boy, or to give him proper instructions.
    All of these instructions went to the jury in writing,' and they had them before them in making up their verdict.
    Under the law they were independent of the general charge and could not- be varied, doubtless because the whole cáse is presented to the jury in their light. Cone & O’Dell v. Bright, 68 Ohio St, 543.
    Nor can erroneous instructions be cured by correct ones on the same subject. They must be withdrawn. Cresler v. Asheville, 134 N. Car., 311; Steinmeyer v. People, 95 Ill., 383; W. U. Tel. Co. v. Benson, 159 Ala., 254, 48 So. Rep., 712.
   Spear, J.

The plaintiff below, á youth nineteen years of age, brought action against The American Steel Plate Manufacturing Company, in the court of common pleas of Defiance county, to recover for personal injuries sustained while in the employ of the Company. In his petition he charges that a certain machine at which he was set to work by defendant was at the time out of repair, a fact known to defendant but not to plaintiff; that the machine was a very dangerous one in operation when out of repair, which fact was well known to defendant but not known to plaintiff. The machine was operated by steam power and its purpose was the punching of holes in sheets of steel, and for binding, corrugating and shaping parts into sheets, and for constructing the same into angle-irons. Plaintiff was not properly instructed or warned of the dangerous character of the machine, and at the time of the accident had worked but a short time upon it. The accident occurred June 20, 1907, by the falling of the upper part of the machine onto plaintiffs hand, thereby crushing it while he was taking out the angle-iron, which operation would have been a safe method had the machine been in good working order, but which, by the negligence of defendant, it was not. Issue was taken by answer and reply.

At the conclusion of the evidence counsel for defendant tendered twenty-six special propositions, all long, and some of them covering about a half a printed page each, with request that they be given to the jury before argument. To this demand the plaintiff objected and excepted especially on the ground that neither the court nor counsel could within a reasonable time fairly examine and pass upon them. But the court overruled the objections and exceptions and gave fifteen of the requests to the jury, refusing to give the remainder. The court then charged the jury generally and a verdict was returned for the defendant on which judgment was entered. On error to the circuit court that judgment was reversed and the cause ordered remanded to the common pleas for further proceedings, the ground for such reversal as stated being error “in the giving to the jury of numerous requests on behalf of defendant to charge on special features of the case, unduly emphasizing them by repeated statements upon the same propositions in varying forms, and in not sustaining the motion of the plaintiff for a new trial for that reason.”

The rights of the parties in this error proceeding arise out of that clause of section 5190, Revised Statutes, which provides that “when the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.” Manifestly it is important that the trial judge have a full understanding of the nature of the instructions requested to be given, for nothing is more vital to the securing of a fair trial than the instructions of the court to the jury as to the law of the case. Generally speaking, how much detail shall be entered into, how minute the reference to evidence shall be entered upon, and how extended .the discussion of it; all such subjects must in the necessity of the situation be left largely to the judgment of the presiding judge. But if an attempt to review the evidence by the judge is made, it should be scrupulously accurate as to matters of substance, and it is even more essential when it relates to matters of law for the guidance of the jury. The charge relating to the law of the case should not be given merely in general terms, but should be by instructions adapted to the issues and to the evidence adduced by the parties, and it should not overstate or unduly emphasize or make prominent, vital points of either side as against the other. A charge should also be neither inadequate nor for any reason misleading, and a charge which confines the attention of the jury to one view of the case when there is more than one which they should consider, or which repeats unduly propositions which, though possibly not actually erroneous nevertheless give undue prominence to one side or the other, is for that reason misleading and often prejudicial.

We do not find it necessary to repeat here the special charges asked, either those given or those refused, because the circuit court, in its opinion, has clearly stated the grounds of its judgment of reversal, and the reasoning of the opinion fully justifies its conclusion. A portion of that opinion follows:

“But the most serious error claimed in this case is the giving by the court of a long series of charges requested to be given before argument.

“Some objection is also made to the general charge of the court as given, but in this we find no error. It was an admirable explanation of the rights of the parties and the duties of the jury in relation thereto, and had it stood alone, we should unhesitatingly have affirmed the judgment.

“But counsel for the defendant in his zeal for his client submitted to the court before argument, a long list of requests to charge, numbering twenty-seven in all, and requested .that these be given to the jury before argument.

“Counsel for the plaintiff objected to the giving of these special requests on the ground that They are so voluminous that counsel for the plaintiff cannot in a reasonable time examine them, and for the further reason that the court cannot fairly examine them and pass upon them in a reasonable time.’

“In view of the fact that these twenty-seven requests, or rather the portion of them embodied in the bill of exceptions cover fourteen pages of the bill, there seems to be much force in the reason for the objection.

“But a much stronger reason might have been given for opposing the giving of these requests.

“Fifteen of these requests were actually given to the jury and ten or twelve of these fifteen were directed to one proposition insisted on by the defense.

“With a persistence that is wearisome, these requests iterate and reiterate this one proposition, viz., that if the defendant exercised due care in the selection of its machinery and in the inspection of the same and did not know and was not bound to know of any defect such as is alleged to have caused the accident, then defendant was not negligent and plaintiff cannot recover, a proposition, which, as limited in the request, was true in itself and proper to be given to the jury, but not one which ought to have been given a dozen different times in as many different forms.

“Eight or more of these requests explain to the jury what would be the effect on plaintiff’s rights of the breaking of a spring which defendant had no means of knowing was broken or likely to break and which it could not with reasonable diligence have discovered to be broken or likely to break.

“Similar propositions are embodied in other requests or interwoven with those referred to and the variety of expression is ingenious and interesting, but, they altogether present a view of the case that is one-sided and unfair, because of the constant emphasis laid upon this one feature of the case.

“Over and over again the conditions under which the plaintiff could not possibly recover were dinned into the ears of the jury, with no corresponding explanation of those conditions under which the plaintiff might possibly recover.

“A more vicious method of presenting a case to a jury could hardly be imagined and especially is this true in view of the fact that these written requests were, under the statute, allowed to go to the jury room to be read and reread by the jury at its leisure.

“It does not excuse the fault to say that the subsequent charge of the court, given after argument, fairly stated the plaintiff’s rights; nor does the fact that .the general charge of the court, embodying a true statement of plaintiff’s rights, was reduced to writing and sent to the jury room along with the special requests that had previously been given, correct the evil.

“Altogether the jurors had before them a dozen and more repetitions of conditions favorable to the defendant to one statement of those conditions under which the plaintiff might recover. This could not fail to present unfairly the issues involved and to give to the jury a distorted view of the importance of the claims put forth by the defendant.

“We find therefore that in the giving of such numerous charges favorable to one side and the undue repetition of charges relating to the same features of the case, the trial court erred and its judgment will therefore be reversed.”

The purpose of the statute cited is manifest. It is to afford the counsel opportunity to present their views of the law and have them considered by the judge, and to obtain, so far as may be, the opinion of the judge thereon, before argument. This in order that they may shape their arguments as to the law in their discussion to the jury in an intelligent manner, and also avoid useless or superfluous discussion. This privilege accorded by the statute ought to be reasonably exercised. Upon the presentation of the requests at the conclusion of the evidence, the whole procedure, stops. Not only should the judge have adequate time to inspect and consider all requests to charge, but opposite counsel cannot be wholly ignored. It may be that, on seeing the requests, they may and they frequently do, desire to present counter-propositions. All this delays the disposition of the case, and, when unreasonably done, is an obstruction to the proper procedure of the court, and hence to the administration of justice. The speedy administration of justice in our courts should be favored, not discouraged.

Now the case below was not a complicated one. The issues were simple, both those relating to the law and those relating to the facts. Such of the requested instructions as were given to the jury were principally repetitions of one proposition argued by the defense. These requests are well described and characterized by the circuit court in its opinion, and it is not necessary to further dwell upon them. Suffice it to say that the case presents an instance where the opportunity given by the statute was so exercised as to defeat the ends of justice for the time, and, for reasons here stated and those given by the circuit court, it is the duty of this court to affirm the judgment of that court.

Judgment affirmed.

Davis, C. J., Johnson, Donahue and O’Hara, JJ., concur.


author: Davis, C. J.

text:
    Worthington, Administrator, etc., v. Redkey, Executor, etc., et al.

      Property claimed as gift by non-testamentary trust — Donee must prove express trust — Legal title must have passed beyond donor’s control, when.

    Where property is claimed as a gift by way of a trust which is not testamentary, it devolves upon the donees to prove an express and certain trust for their benefit, either assumed by the donor himself or imposed upon a third person, and in the latter case that the property or the legal title thereto passed beyond the dominion or control of the donor in his lifetime, to the donees or to the person designated as a trustee for them.
    No. 12348
    Decided April 30, 1912.
    Error to the Circuit Court of Highland county.
    On October 13, 1905, Joseph Worthington made a last will and testament in anticipation of speedy death, for he was then prostrated with'very serious illness. The person who drew the will for him was Martin Redkey. In that will he made certain bequests to charities. On the following day, October 14,. 1905, Redkey after reflecting upon the subject, came to the conclusion that by reason of the statute of Ohio these bequests for charitable purposes would be void, and he returned to the home of Worthington and so stated to him. Upon inquiry by Worthington as to what could be done in that event, Redkey suggested that he could make a disposal by way of trust, and thereupon, on that day, the following writing was executed:
    “I, Joseph Worthington, of Highland county, Ohio, hereby appoint Martin Redkey a Trustee in trust to receive and hold and after my death disburse the following sum of money and other valuable assets, to-wit: Six thousand two hundred dollars which sums are to be disbursed as follows, to-wit:
    “To the Trustees of East Monroe Methodist Church, One Thousand dollars in perpetuity.
    “To the Foreign and Home Missionary Societies and Women’s Home and Foreign Societies of the Methodist Episcopal Church, One Thousand dollars each.
    “To the Wednesday Club Library Association of Leesburg, O., the sum of Two Hundred, in perpetuity, the proceeds to be used to pay expense of keeping up said library. In the event the Society disbands I direct my said Trustee to collect and pay over to the Methodist Church of Leesburg, O., the said sum for the support of the Church.
    “Also in the event of the dissolution of the Angeline Johnson Altruistic Society, to recover the one thousand dollars previously given to it and pay the same to the Methodist Church of Leesburg for the benefit of the poor as provided in another pa [paper] now on record in the Recorder’s office, Hillsboro, O.
    “To the Methodist Home for the Aged at Cincinnati, O., One Thousand dollars.
    “In the event of the death of said Trustee, I request the Probate Court to appoint a Trustee to serve in his stead and complete the trust as above set forth.
    “I reserve the right to revoke this appointment at any time during my life. In testimony whereof I have subscribed my name this 14th day of October, 1905.
    “Joseph Worthington.”
    Upon the same day, Worthington executed another will, leaving out the legatees mentioned in the aforesaid writing. He did not die immediately, but survived until May 28, 1906, when he departed this life, leaving, however, still another will than the two already mentioned, which was probated and admitted to record June 18, 1906, and pursuant to the nomination therein the said Martin Redkey was appointed and qualified as executor thereof.
    Thereafter, in 1907, Redkey died, and the defendant, Charles C. Redkey, is his executor. Worthington’s administrator cle bonis non with the will annexed, brought suit against Charles C. Redkey, as executor of the last will and testament of Martin Redkey, to recover from the estate of Martin Redkey the sum of $6,200 deposited with the said Martin Redkey under the writing aforesaid. The donees named in the said writing all intervened by cross-petitions, claiming the fund to belong to them.
    Upon the trial in the court of common pleas, the said court found for the plaintiff and rendered judgment against the defendant, Redkey, as executor, in the sum of $6,904.07, together with the costs of said action. Upon a petition in error, the circuit court reversed the judgment of the court of common pleas, upon the ground that, “under the terms of said written instrument of date the 14th day of October, 1905, said Martin Redkey became the trustee for the beneficiaries therein named, and not the agent or trustee of the said Joseph Worthington, and said written instrument and delivery of the money therein mentioned, created a. valid trust and passed a then present legal title to the said trustee.”
    This proceeding is prosecuted to reverse the judgment of the circuit court and to affirm the judgment of the court of common pleas.

      Mr. John Logan; Messrs. Post & Reid and Mr. I. McD. Smith, for plaintiff in error.
    Passing for the present the potent fact that the fund was deposited with Redkey as agent or trustee of Joseph Worthington, it is palpable that the writing was an attempted testamentary disposition. By its express terms Redkey was “to receive and hold and after my death disburse the following sum of money.”
    On all hands it is conceded to be a disposition of property; the stipulation quoted' determines unequivocally that such disposition should take effect after Worthington’s death. Baker v. Baker, 51 Ohio St., 217; Phipps v. Hope, 16 Ohio St., 586; Basket v. Hassell, 107 U. S., 602; Gano v. Fisk, 43 Ohio St., 462.
    In the first place, it has been settled, at least in Ohio, that if presumption is allowable, it is indulged against claim of gift. Flanders v. Blandy, 45 Ohio St., 108; Hatch v. Atkinson, 56 Me., 324; 3 Redfield on Wills (3 ed.), *348; Martin v. Funk, 75 N. Y., 134.
    No title passed to Redkey under the writing empowering him to act in his own name or adversely to Worthington.
    As a testamentary disposition the writing was inoperative.
    The agency it defined was revoked by Worthington’s death.
    Hence, the fund remained assets of Worthington’s estate. It remained in Redkey’s possession and control while he was executor of Worthington’s estate. At Redkey’s death, it passed into the custody of his personal representative, whose duty it was on the qualification of the successor of the . deceased executor to deliver the fund tó such successor.

      Mr. D. Q. Morrow; Mr. George. L. Garrett; Messrs. Boyd & Slutes; Messrs. Philip & S. C. Roettinger; Mr. Henry A. Pavey; Mr. S. F. Steele and Mr. William W. Prather, for defendants in error.
    The admitted delivery of $6,200 to Martin Redkey by Joseph Worthington on October 14, 1905, was a delivery in trust for the purposes set forth in the written instrument dated October 14, 1905, and delivered to Redkey by Worthington at the time the check for the money was turned over to Redkey and as part of the same transaction; and the terms of the written instrument of October 14, 1905, can not be added to, varied, annulled or contradicted by parol testimony. 1 Perry on Trusts (6 ed.), Sec. 76; 9 Ency. of Evidence, 326; 4 Wig-more on Evidence, .Secs. 2400 and 2425; Eleventh Street Church v. Pennington, 18 C. C, 409; Tuttle v. Burgett’s Admr., 53 Ohio St., 498; Babcock v. May, 4 Ohio, 335; Douglass v. Campbell, 2 C. C., N. S., 62, 14 O. C. D., 241; Titus v. Kyle, 10 Ohio St., 445; Jones v. Timmons, 21 Ohio St., 596; Avery v. Vansickle, 35 Ohio St., 270; Beecher v. Dunlap, 52 Ohio St, 64; Thornton on Gifts, Sec. 436; Wallace v. Berdell, 97 N. Y., 13.
    The trusts constituted by the delivery to Martin Redkey of the $6,200 and the written instrument of October 14, 1905, are valid trusts for the benefit of the institutions named in the written instrument. Stone v. Hackett, 12 Gray, 227.
    The quotation from Thornton on Gifts, Sec. 436, and the cases of Van Cott v. Prentice et al., 104 N. Y., 45; Rood on Wills, Sec. 35; Noble v. Learned, 153 Cal., 245, 94 Pac. Rep., 1047; In re Podhajsky’s Estate, 137 la., 742, 115 N. W. Rep., 590; Cuff v. Cuff, 105 N. Y. Supp., 332; and the cases cited in 47 Cent. Dig., 525, show clearly, without qualification, that unless a trust instrument contains a provision reserving the right to revoke the trust, the grantor cannot revoke the trust under any circumstances whatever, except by the consent of the beneficiaries. Smith v. Youngblood, 68 Ark., 255, 58 S. W. Rep., 42; Sorrells v. Collins, 110 Ga, 518, 36 S. E. Rep., 74.
    A trust is where property is conferred upon and accepted by one person on the terms of holding, using or disposing of it for the benefit of another. Mannix v. Purcell, 46 Ohio St., 102.
   Davis, C. J.

The circuit court held that by the writing of October 14, 1905, which was contemporaneous with a will of the same date, Martin Redkey became the trustee for the beneficiaries therein named, and not the agent or trustee of Joseph Worthington, and that said written instrument and delivery of the money therein mentioned created a valid trust and passed a then present legal title to the said trustee; and for that reason the judgment of the court of common pleas was reversed. We have not been able to give our assent to the conclusion of the circuit court.

Worthington was engaged in making disposition of all his property by a last will and testament, when a doubt arose as to the validity of bequests to certain charities, in case he should die within twelve months; and, to accomplish the same purpose, the scheme of a gift by way of a trust was resorted to. The question now arises, was the trust definitely declared, and was the subject of the trust completely separated from the dominion of the donor in his lifetime?

Whether a gift is inter vivos, or causa mortis, or made through the medium of a trust, it is none the less a gift and subject to the conditions which the law places upon gifts; and whether the gift is made to a third person as agent for the donor or as trustee for the donee, there must be such a distinct and absolute delivery of the property as to show a relinquishment of all dominion over the property by the donor. 14 A. & E. Ency. Law (2 ed.), 1025, 1026. “To constitute a valid gift the transfer must be consummated, and not remain incomplete, or rest in mere intention; and this is so whether the gift is by delivery only, or by the creation of a trust in a third person or the donor; enough must be done to pass the title.” Martin v. Funk et al., 75 N. Y., 134. “The acts must be of that character which will admit of no other interpretation than that such legal rights as the settlor retains are held by him as trustee for the donee; the settlor must either transfer the property to a trustee or declare that he holds it himself in trust. An intention to give, evidenced by a writing may be most satisfactorily established and yet the intended gift may fail because no delivery is proved. And where an intention to give absolutely is evidenced by a writing which fails because of its non-delivery, the court will not and cannot give effect to an intended absolute gift by construing it to be a declaration of trust and valid, therefore, without delivery.” Wadd v. Hazelton et al., 137 N. Y., 215, 219. And see generally, Welch v. Henshaw, 170 Mass., 409; Smith’s Estate, 144 Pa. St.. 428; and Smith, Admr., v. Ferguson, 90 Ind., 229.

.It must be clear, then, that the writing itself, however definite it may be in its terms, proves no more than an intention on part of the donor to create a trust for the payment of money after his death. If the money has not irrevocably passed out of his control to the donees, or to a trustee for them, then this writing is, at best, no more than an ineffectual testamentary disposition; or, if sufficiently attested under the statute, it was revoked by the will which was subsequently probated.

There is evidence in this record, and it is not disputed, strongly tending to prove that the check for $6,200 which it is admitted Worthington gave to Redkey, was made payable to “M. Redkey, trustee in trust for Jos. Worthington;” and it is proven beyond dispute that Martin Redkey, on October 14, 1905, deposited a check of Joseph Worthington for $6,200, in the Leesburg Bank, and with it a deposit slip in his own handwriting, containing the words, “Deposited by M. Redkey, trustee in trust for Jos. Worthington;” and it is further proved that the account of Redkey as trustee, with the bank was carried on the books of the bank as “M. Redkey, trustee in trust for Jos. Worthington.” Apparently this evidence was given little weight in the circuit court, because it was held that the delivery of the $6,200 to the trustee, Martin Redkey, effectually passed the legal title to the money beyond the control of the creator of the trust. That is a begging of the whole question, which is, for whom was Redkey receiving the money, and for whom was he to hold it, since by the terms of the writing he was to hold it until after the death of Worthington.

The defendants in error claim this money under a trust established and declared for their benefit. It devolves upon them to prove this clearly and satisfactorily. Instead the facts already adverted to prove, or at least strongly tend to prove, that Redkey did not receive the money absolutely in trust for them, but, as the check, the deposit slip and the bank books declare, as “trustee in trust for Jos. Worthington.” The acts of Redkey clearly show that he understood that he was receiving the money to hold it for Worthington until after the latter’s death. The answer to this, in the opinion of the circuit court, is that under the written instrument there is nothing for Redkey to do for Worthington in regard to the $6,200. It is palpable that, under the writing, he was to hold the $6,200 during the life of the donor and in certain contingencies to collect moneys and pay over to donees; and besides there is nothing in the record, that we have discovered, which shows that the payment to' “M. Redkey, trustee in trust for Jos. Worthington,” was intended for the benefit of the donees named in this writing.. It may have been upon some other trust.

What has been said was upon the assumption that the writing in question was entirely clear and unequivocal in the declaration of a trust. The words “trust” and “trustee” are neither necessary nor controlling. “The certainty in a declaration of trust which is necessary and sufficient to create a trust has been construed to mean clear, explicit, definite and unequivocal expressions setting out the trust with such certainty that a court of equity may enforce its execution.” 39 Cyc., 58.

This writing is clear enough in the beginning. It is only further along when he says, “In the event the society disbands I direct my said trustee to collect and pay over,” etc., also, “in the event of the dissolution of the Angeline Johnson Altruistic Society [I direct my said trustee] to recover the one thousand dollars,” etc., that the words “my said trustee” in connection with the language of the check to Redkey begin to suggest a double meaning. This is intensified when he seems to follow the fund into the future by requesting the probate court to appoint a trustee in the event of the death of the trustee named; and still more when he added the clause, “I reserve the right to revoke this appointment at any time during my life.” It is said that this is a negligible factor in this case, because he never did revoke the appointment. Nevertheless, it reflects a strong light on the question whether he ever did intend to finally and forever abandon all control over the fund during his life. On the day before he made a will bequeathing this money to these claimants, which would still leave the property under his control until his death, and on the next day, believing that his purpose would be unavailing in a will, he resorted to the device of a gift by means of a trust imposed upon his friend and adviser, who was the cashier of the bank in which his money was deposited. And it would seem, at least in one point of view, that instead of an absolute and irrevocable payment of'the money for the benefit of the donees, he did not intend to let it get beyond the power of recall, and perhaps that he might have the increment of the money while he lived. This is not a forced construction, for “appointment” may mean an appropriation of money to a specific purpose, or the act of a person in directing the disposition of property by limiting a use, or the exercise of the right to designate a person. Black’s Law Dictionary, 2d edition. So that the best that can be made out of this document for the defendants in error is that it is ambiguous and they have not clearly made out their case.

It is proper to note that the opinion in Stone v. Hackett, Exr., et al., 12 Gray (Mass.), 227, which case seemed to be much relied on by the defendants in error on the oral argument, contains the following significant qualification: “Perhaps if there were any facts to show that the transaction was intended to be testamentary in its character, and was entered into for the purpose of evading the provision of law regulating the execution of last wills and testaments, there might be some ground for impeaching the validity of the conveyance and withholding the sanction of the court from the trusts which the donor intended to establish.”

Our conclusion is that neither the possession of the money, nor the title to it, passed to the donees, nor to a trustee for them, 16 Ann. Cases, 373, note; that it would seem, upon consideration of all of the circumstances, that the delivery of the check to Redkey was to him as agent of the donor, for the purpose of delivery after the donor’s death, rather than a delivery to him as trustee for the donees, Trubey v. Pease, 240 Ill., 513; and that if Redkey was acting as the agent of the donor, such agency was revoked by his principal’s death; and finally, if the transaction be regarded as an attempt at testamentary disposition it was revoked by a subsequent will.

The judgment of the circuit court is reversed and the judgment of the court of common .pleas is modified as to interest and costs and is affirmed as modified.

Reversed.

Shauck, Spear, Johnson and O’Hara, JJ., concur..