Kelly v. Smith
| Decision Date | 12 May 1964 |
| Citation | 7 Ohio App.2d 142,219 N.E.2d 231 |
| Parties | , 36 O.O.2d 293 KELLY, Appellant, v. SMITH et al., Cross-Appellants. In re GUARDIANSHIP OF KREITZER. |
| Court | Ohio Court of Appeals |
William E. Shirk, Bellefontaine, for appellant.
James R. Goslee, Bellefontaine, for cross-appellants.
On November 14, 1960, one Helen E. Lakin, as guardian of the estate and person of Mary A. Kreitzer, filed her complaint in the Logan County Probate Court under the provisions of Section 2109.50 et seq., Revised Code, alleging that she had been appointed guardian on August 12, 1960, and that she had good cause to suspect that Nellie M. Smith and Ralph Smith have 'concealed or conveyed away or are or have been in possession of monies, chattels or choses in action belonging to said ward's estate.' The first item claimed concealed was 'the sum of $7,000 plus interest thereon at the rate of 6% per annum from the 20th day of August, 1958.' Other items described in the complaint and in an amendment thereof made during trial are not herein involved, for the trial court did not find any of them to be concealed, and neither the appellant nor the cross-appellants assign error as to the trial court's judgment with respect to the other items.
Before trial of the complaint Mrs. Kreitzer died, and on January 15, 1963, John B. Kelly, as the executor of her estate, was ordered substituted as party in interest in place of the guardian, Helen E. Lakin, in all matters pertaining to the complaint.
Trial was had to the court without a jury. Upon the commencement thereof Smiths' counsel represented to the court that Ralph Smith was confined in a hospital under constant medical care, that he had had a series of strokes and was both physically and mentally incompetent, although he had not been adjudicated so. Counsel not objecting to proceeding in the absence of Smith, the court, sua sponte, appointed one of his counsel as his trustee for the suit.
Although Mrs. Smith acknowledged during trial that in August of 1958 Mrs. Kreitzer, while living with the Smiths and two years before a guardian for her had been appointed, advanced $7,000 to the Smiths to pay a debt of theirs about which Smith had been worried, she claimed that this advance was made as a gift and in consideration of their care of Mrs. Kreitzer. However, she also testified that from that time until the appointment of a guardian the Smiths paid Mrs. Kreitzer interest in semiannual installments of $140 each. Except to such extent there was no evidence adduced during the trial that from such transaction the Smiths were in any manner obligated to Mary A. Kreitzer, her guardianship estate, or her estate upon her decease, nor was any evidence adduced that the Smiths, or either of them, had ever executed any document in favor of Mrs. Kreitzer evidencing an obligation.
After the executor had rested his case, Smiths' counsel moved for dismissal of the complaint on the ground that there was no evidence to sustain its allegations, which motion was granted. Thereupon, Smiths' counsel presented to the court and tendered to the executor an instrument dated September 1, 1958, signed by Ralph W. Smith, and purporting to be a promissory note payable to the order of Mary A. Kreitzer in the principal amount of $7,000, with interest thereon at 4 per cent per annum payable semi-annually and also tendered to the executor certain checks purporting to be in payment of interest for the period of time extending from the last date for which interest had been paid to the date of the death of Mary A. Kreitzer. On the reverse of the note appears the following typewriting:
Mr. Goslee, of counsel, admitted knowledge of the note's existence only from the time that the complaint was filed and observed to the court that he questioned that the note was an asset of the estate of the deceased. Mr. Dabbelt, of counsel, stated that he had prepared the note, that it had been missing, and that he did not know until 'sometime since the first of the year, that she (Mrs. Smith) had found the note.' Mrs. Smith admitted knowledge of the note's existence but said that she had not testified thereto because she had not been questioned as to its existence, that the whole transaction had been between her husband and Mrs. Kreitzer, and that 'if he were here he could tell you.'
Faced with this turn of events the court entered its judgment, which in pertinent parts, read as follows:
'The court then ordered the executor of the estate of Mary A. Kreitzer to pursue all legal remedies against the respondent on behalf of the estate.
'Furthermore, the court, upon motion of the complainant, ordered continued the injunction of October 31, 1960, against said respondents, enjoining them from transferring or encumbering their real and personal property, pending further order of this court.'
It is from this judgment that the complainant-executor has appealed and the Smiths have filed a cross-appeal, now reduced to and being considered as appeals on questions of law.' The executor claims that the court erred as a matter of law (1) in dismissing the complaint in the face of its finding and judgment of guilty, and (2) in failing to render judgment for the value of the note together with a ten per cent penalty. The cross-appellants assign error of the court (1) in failing to find cross-appellants not guilty, (2) in continuing the restraining order, and (3) in failing to dismiss the proceedings upon the submission of all the evidence.
This case involves the application of Sections 2109.50 and 2109.52, Revised Code, which, in pertinent parts, provide as follows:
Section 2109.50. 'Upon complaint made to the probate court of the courty having jurisdiction of the administration of a trust estate * * * by a person interested in such trust estate * * * against any person suspected of having concealed, * * * or conveyed away or of being or having been in the possession of any * * * choses in action of such estate, said court shall by citation * * * compel the person or persons so suspected to forthwith appear before it to be examined, on oath, touching the matter of the complaint. * * *'
Section 2109.52. 'When passing on a complaint made under section 2109.50 of the Revised Code, the probate court shall determine, by the verdict of a jury if either party requires it or without if not required, whether the person accused is guilty of having concealed, * * * conveyed away, or been in the possession of moneys, chattels, or...
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