In re Black's Estate

• Decision Date: 20 June 1945
• Docket Number: 30248.
• Citation: 145 Ohio St. 405,62 N.E.2d 90
• Parties: In re BLACK'S ESTATE.
• Court: Ohio Supreme Court

62 N.E.2d 90

145 Ohio St. 405

In re BLACK'S ESTATE.

No. 30248.

Supreme Court of Ohio

June 20, 1945

Syllabus by the Court.

1. Sections 10506-67 and 10506-73, General Code, provide a summary means, inquisitorial in nature, to recover specific property or the proceeds or value thereof belonging to a trust estate, title to which was in a decedent at his death or in a ward when his guardian was appointed; or to recover property, belonging to a trust estate, concealed, taken or disposed of after the appointment of the fiduciary.

2. A complaint filed under Section 10506-67, General Code involves a charge of wrongful or criminal conduct on the part of the person accused.

3. In a proceeding under Section 10506-67 et seq., General Code a finding of guilty or not guilty is required with the imposition of a penalty upon a finding of guilty, and the statutes should not be extended by implication beyond their manifest purpose, to reach persons or matters not covered by the descriptive terms of the statutes.

4. A proceeding instituted by a guardian under Section 10506-67 General Code, to recover property alleged to belong to his ward's estate, may not be successfully pursued where it appears from the evidence that title to such property had been transferred by the ward, pursuant to a valid agreement, prior to the guardianship.

5. Resort may not be had to Section 10506-67 et seq., General Code, to collect a debt, obtain an accounting or adjudicate rights under a contract.

Appeal from Court of Appeals, Hamilton county.

Eleanor A. Ridiman and R. T. Dickerson, both of Cincinnati, for appellant, Eleanor A. Ridiman, guardian.

M. Froome Barbour and James E. Kimpel, both of Cincinnati, for appellee, Ann Tegeder.

On March 17, 1943, the Probate Court of Hamilton county appointed Eleanor A. Ridiman guardian of the person and estate of Wilma Black, an 'incompetent by reason of improvidence.' On June 14th of the same year, the guardian filed in the Probate Court a paper captioned, 'Complaint for Concealing Assets,' in which it was charged that one Ann Tegeder, residing in the city of Cincinnati, 'has in her possession and is concealing certain property belonging to said Wilma Black, an incompetent.' The complaint asked that Ann Tegeder be cited to appear before the court on a specified day 'to be examined under oath, touching the matters of this complaint; and that such proceedings may be had in the premises as are authorized by law.'

A hearing was conducted and thereafter, at the request of counsel for Mrs. Tegeder, the court made a separate finding of fact and conclusion of law. It was found as a fact 'that the said Ann Tegeder received from the said Wilma Black, monies and chattels of the value of $1,998.56, and that the said Ann Tegeder now unlawfully retains the same and refuses to deliver said monies and chattels to the guardian herein.' It was concluded as a matter of law 'that under the provisions of General Code, Section 10506-73 the guardian herein is entitled to recover said sum of $1,998.56 from the said Ann Tegeder.'

Judgment was rendered for the amount stated, together with a penalty of ten per cent thereon.

Upon appeal to the Court of Appeals, that court reversed the judgment below and entered final judgment for Mrs. Tegeder on the ground that the evidence 'failed to establish cause of action for having in possession and concealing assets of the improvident ward,' within the contemplation of Section 10506-67 et seq., General Code.

Allowance of the motion for certification brings the case here for review on its merits.

ZIMMERMAN, Judge.

For a proper understanding of this case it becomes necessary to summarize the material evidence as contained in the bill of exceptions.

Wilma Black, unmarried, had held a stenographic position with the Union Central Life Insurance Company of Cincinnati. Beginning sometime in 1936, she became afflicted with a crippling form of paralysis. In 1939 she went as a patient to the Reading Institute and was there attened by Mrs. Ann Tegeder, a graduate nurse. In 1940 Mrs. Tegeder came, as a nurse, to the Black home in Cincinnati, occupied by Miss Black and her parents.

During the latter part of that year, Mrs. Tegeder went to Florida and took Miss Black with her. They were later joined by Miss Black's father and mother, who were also invalids. Mr Black died in Florida in October of 1941. Miss Black remained continuously with Mrs. Tegeder in Florida until the middle of 1942. Shortly after Mrs. Tegeder and Miss Black arrived in Florida, a large house was leased, which was fitted out as a nursing establishment and operated by Mrs. Tegeder, under the name of the 'Miami Beach Convalescent Home.' Besides Miss Black and her parents, a number of other patients were accommodated.

At first an arrangement was contemplated whereby, for the lodging, food and general nursing of the Blacks at the convalescent home, Miss Black was to pay Mrs. Tegeder the sum of $50 weekly for each of them. The cost of special nurses, doctors' services, medicine, drugs and other extraordinary expenses was to be extra. However, such arrangement was never consummated, and an agreement or understanding was entered into between Mrs. Tegeder and Miss Black whereby, in consideration of Miss Black's advancing the funds required to lease the convalescent home, Mrs. Tegeder was to care for the Blacks at $50 per week each plus additional charges for special needs, and credit the same against the advance.

At about the time she went to Florida, Miss Black had a considerable amount of money in several Cincinnati financial institutions, approximately $12,000. A check from one of these institutions for $3,500, dated December 11, 1940, and payable to Wilma Black, was sent her in Florida. It was endorsed by Wilma Black and Grace Ott, the latter being one of the owners of the property leased, and deposited in a Miami bank. Another check from the same institution dated July 16, 1941, for $2,356.94, and payable to Wilma Black, was also sent her in Florida. It was endorsed by Miss Black and Mrs. Tegeder and deposited in the same Florida bank. Mrs. Tegeder testified that the proceeds from both these checks were applied in payment for the lease of the property.

There were other checks in varying amounts sent to Miss Black from time to time from the Cincinnati institutions where she had her money. They were endorsed by Miss Black and Mrs. Tegeder and the latter collected the proceeds. Mrs. Tegeder and Miss Black both testified that, pursuant to their arrangement, Mrs. Tegeder credited against the amount she so received the care of the Blacks at $50 per week per person, together with other expenses incurred by them or on their behalf. The aggregate amount of the checks issued and so handled totalled $10,428.09.

At the hearing in the Probate Court, Mrs. Tegeder was unable to render any written account of these transactions, claiming that they were contained in a book she had left at the convalescent home in Florida upon her...