
    Lorain County Savings & Trust Co. et al. v. Haynes.
    
      Replevin — Pleading—Allegations constitute averment of wrongful detention, when — Parties—Defendant administrator may interplead executors subsequently appointed — Section 11265, General Code.
    
    1. In a petition in replevin, allegations that plaintiff is the owner and entitled to the possession of certain goods and chattels, and that defendant has' and retains them and refuses to deliver them to plaintiff on plaintiff’s request, constitute an averment that defendant wrongfully detains said goods and chattels.
    2. A defendant, against whom an action in replevin has been commenced by a person claiming to be the absolute owner and entitled to the possession of goods' and chattels that came into defendant’s possession as administrator, may, under Section 11265, General Code, interplead the executors of said estate, appointed under a will probated after the defendant had been appointed administrator of said estate.
    (Decided October 20, 1927.)
    Error: Court of Appeals for Lorain county.
    
      Mr. F. M. Stevens and Mr. G. J. Maple, for plaintiffs in error.
    
      Messrs. Fauver & Fauver, for defendant in error.
   Funk, J.

On November 27, 1925, Joseph- B. Haynes, who will be referred to as plaintiff, filed his petition in the common pleas court to replevin five diamond rings, a bar pin set with diamonds and sapphires, and a wrist watch set with eight diamonds, from the Lorain County Savings & Trust Company, as defendant, which will be referred to as the trust company.

Without answer, the trust company, on December 1, 1925, filed an affidavit of interpleader, stating that the executors of the estate of Marguerite M. Haynes, deceased, also claimed said property, and that it did not know to whom it could safely deliver said property, and that it was ready and willing to dispose of and deliver the same as the court might direct. An order of interpleader was allowed against said executors, and they became defendants in this action and filed a motion to vacate the order of interpleader, and a demurrer to the petition; both of which being overruled, they filed an answer.

The record discloses that plaintiff and said decedent were married August 21, 1923; that for some years prior thereto they had lived together and held themselves out as husband and wife; that the wedding ring, and a fancy diamond ring, containing 32 diamonds, were purchased by plaintiff in May, 1919, but that the wedding ring and the wrist watch were conceded, during the trial, to be the property of decedent and eliminated from this litigation; that two of the rings and a bar pin were purchased by plaintiff in February and March, 1923, and one ring purchased by him in September, 1923. The rings all fitted the fingers of decedent, and she had possession of and wore them as she desired, from the time of their purchase by plaintiff until the time of her death, on September 12, 1925. It will be noted that all the jewelry in controversy except one ring was purchased in 1923, only about two years before the death of decedent, and that all but one ring was purchased prior to the actual or statutory marriage in August, 1923.

Prior to the time of decedent’s last sickness, she rented a safety deposit box in the vault of the trust company, and placed part of the jewelry in controversy in it. After she was taken to the hospital, the remainder of the jewelry was deposited with the trust company in a sealed envelope, by a brother of the decedent. After her death, the deposit box was opened under the supervision of the tax commission of Ohio, and all the jewelry in controversy was then placed therein by the trust company, as administrator of her estate.

On September 25, 1925, the trust company was appointed administrator of the estate of the decedent, Marguerite M. Haynes. On October 13, 1925, a will of decedent was filed in probate court. On October 15, 1925, the trust company, as administrator, filed its inventory of her estate, listing all of the jewelry in question as her property. On November 18, 1925, the will was admitted to probate, and her two brothers, Francis E. Moran and Theodore E. Moran, were appointed executors of her will, and an order of appraisement issued to them as such executors.

On December 7, 1925, the trust company filed its final account as administrator of decedent’s estate, to which the executors, on December 24, 1925, filed exceptions, because it failed to show delivery to said executors of the jewelry in controversy, and on the same day they commenced proceedings against plaintiff, Haynes, and said trust company, in said probate court, under Section 10673, General Code, asking that a writ of citation be issued requiring them to appear in court for examination for having concealed, embezzled, or conveyed away said jewelry, which proceedings and exceptions, are yet pending in that court.

This case was tried below upon the petition, as amended by interlineation during trial, and the joint answer of the executors, which is a general denial. A verdict was returned for the plaintiff, on which judgment was entered. The case is here on error, seeking to reverse that judgment.

The first error complained of is that the court erred in overruling the motion of the executors to direct a verdict in their favor, not only at the close of the evidence in chief for plaintiff, but also at the close of all the evidence, for four reasons: First, that the petition does not state facts sufficient to constitute a cause of action; second, that the court was without jurisdiction to hear this case; third, that it is not a case in which an affidavit for interpleader could be properly filed; and, fourth, that there is no evidence to support the allegations of the petition.

First, as to the sufficiency of the petition:

Counsel for the executors contend there is no allegation of a wrongful detention in the petition.

Omitting the formal parts and the description of the jewelry, the petition reads as follows:

“Plaintiff says that he is the owner and entitled to the possession of the following goods and chattels: [Here follows a description of the jewelry.] The defendant has and retains possession of the above-described property and refuses to deliver the same to plaintiff, although requested to do so.”

Although our Code provides what an affidavit in replevin shall contain, there is no provision in the Code as to what must be alleged in the petition. However, it has been the holding of the courts in Ohio that the petition must be framed in substantially the same manner as the affidavit in replevin. Wilmot v. John H. Lyon & Co., 7 C. D., 394, 11 C. C., 238.

It being settled in this state that the gist of an action in replevin is the unlawful or wrongful detention of property from the plaintiff, the question presented is . whether or not the language of the petition is sufficient to aver such detention.

An unreversed decision of our Supreme Court (Grever & Sons v. Taylor, 53 Ohio St., 621, 42 N. E., 829), and which has since been followed by Ohio courts, held that a petition in replevin, which alleges that defendant wrongfully detains from plaintiff certain goods of the plaintiff, and describes them, is sufficient without a special averment that plaintiff is entitled to the possession. This holding is upon the principle that what is necessarily implied in the language used is as much a part of the pleading as if it were stated in express words.

Applying this principle, we believe the language used as above set forth is sufficient to show such detention, because, if plaintiff is the owner and entitled to possession and defendant retains the property and refuses to deliver the same to him upon his request to do so, it must necessarily follow that such detention cannot be otherwise than wrongful or unlawful. We are therefore clearly of the opinion that the petition states a good cause of action.

Second, as to the jurisdiction of the court in this case:

Counsel for the executors contend that the court had no jurisdiction of the subject-matter of this, action, because the property was under the jurisdiction of the probate court by having been listed: and appraised by the trust company, as administrator, as the property of decedent, and because of exceptions having been filed by the executors to the final account of the trust company, as administrator, on the' ground that it did not show delivery of the property in controversy to the executors, and for the further reason that said executors had commenced proceedings in probate court under Section 10673, General Code, against the plaintiff and. the trust company to require them to appear and be examined for having concealed, embezzled, or conveyed away said jewelry, and they cite Tibbott, Adm’x., v. Cadisch, 35 C. D., 504, 28 O. C. A., 481, in support of this contention.

It will be noted that in that case the administratrix first commenced her action in replevin in the common pleas court, and then commenced the proceedings under Section 10673, General Code, in the probate court against the same defendant, and first prosecuted the latter proceedings to final judgment, which resulted in favor of the defendant; that the administratrix then attempted to try the replevin case, and the court held that the proceeding under Section 10673, General Code, in the probate court, having been prosecuted to final judgment, was a bar to the replevin suit. If the replevin case had first been prosecuted to final judgment, with the same result in favor of defendant, it no doubt would have been held to be a bar to further proceedings, under Section 10673, in the probate court.

In the instant case it is conceded that the exceptions to the account of the trust company, and the proceedings commenced by the executors in the probate court under Section 10673, General Code, were commenced after the replevin suit had been commenced, and that they are yet pending and have not been determined in that court. Furthermore, the replevin suit in the instant case was commenced by the plaintiff, not as an heir or devisee, claiming through the estate, but as an outside or third person, claiming absolute ownership, as against the estate, and the right to the immediate possession of the jewelry; and, claiming to be such owner, he had the right to commence his action at once against any one in possession, either by suit in replevin or such other proceeding as would try his right to the property. He had no right of action under Section 10673, General Code, and was not required to wait to bring his action until the administrator turned over the jewelry to the executors, or until the executors would commence an action under said Section 10673, or file exceptions to the account of the administrator.

Whether or not the exceptions of the executors to the final account of the trust company, or their proceedings under Section 10673 in probate court, were proper remedies to determine the right of property under the conceded facts in this case, it is not necessary to determine, as we are clearly of the opinion, both upon principle and authority, that in any event they could not be a bar to this action and deprive the court below of jurisdiction unless they had been prosecuted to a final determination in the probate court prior to the trial in the instant case. We therefore find no error in this particular.

Third, as to plaintiff’s right to interplead:

So far as anything appears from the face of the petition and the affidavit, the trust company had the right, under Section 11265, General Code, to file the affidavit of interpleader just as it did do, and the statute was properly followed. This statute is not intended to regulate the entire subject of interpleader, and is only an auxiliary or cumulative remedy, and is not destructive of and should not be confounded with equitable interpleader. First Nat. Bank of Cadiz v. Beebe, 62 Ohio St., 41, 56 N. E., 485; Kerr v. Bowers, 26 C. C. (N. S.), 289, 30 C. D., 383.

However, it is contended by counsel for the executors that the trust company never had possession of said jewelry in its individual capacity; that after it had been appointed administrator, the deposit box opened by the tax commission, and the trust company had listed the jewelry in its inventory as administrator and appraised it as the property of decedent, the trust company then had possession only as administrator, and not in its individual or corporate capacity, • and, having been made defendant only in its corporate or individual capacity, in which capacity it did not have possession, its only proper course was to have answered and not to have interpleaded, and that its duty as such administrator was to have turned over the property to the executors, and that, even though the petition and the affidavit of interpleader may be regular on their face, the evidence is such that the trust company was not entitled to file such affidavit of interpleader, and that it was therefore error for the court to overrule the motion of the executors .for a directed verdict, both at the close of the plaintiff’s case and at the close of all the testimony.

It is also contended by counsel for the executors that, decedent having put a part of the jewelry in a safety deposit box, and the trust company having received the remaining part of it in a sealed envelope for safe-keeping, the relation of bailor and bailee, or that of landlord and tenant, existed between the estate of decedent and the trust company, and that this relationship existed after the executors were appointed under the will, even though the trust company had been previously appointed administrator of the estate and taken possession of the jewelry as such administrator.

We think this contention is somewhat inconsistent with the above contention that the trust company had possession only as administrator, and that the authorities cited to sustain this position are inapplicable to the facts in the instant case. In any event, the trust company was not a bailor or a landlord at the time of the commencement of this suit.

It will be observed that the evidence discloses that the larger part of the jewelry was received for safe-keeping by the trust company in its individual capacity, in the sealed envelope which was brought to it from the hospital by a brother of the decedent after she had been taken to the hospital, where she died the next day after the envelope containing the jewelry had been so received by the trust company.

It will be further noted that the suit in replevin was commenced against the trust company after the executors had been appointed and had demanded the jewelry from the trust company and before it had filed its final account and delivered the jewelry to said executors, and while the jewelry was yet in its possession. After the trust company had been appointed administrator and the jewelry came into its possession as such, the trust company was in the same position as an individual would be in had he been appointed such administrator and the trust company had turned the jewelry over to him and he had placed it in his private safe. The trust company would then have had nothing more to do .with it. The relationship between the trust company and the estate of decedent concerning the jewelry found in the safety deposit box and the jewelry it had received in the sealed envelope for safe-keeping ceased upon the trust company taking possession of it as administrator, just the same as if some one other than the trust company had been appointed administrator. The manner or place from which it received the jewelry had no further bearing on the capacity in which it held the jewelry, after it was appointed administrator. The fact that a will was afterwards discovered, and executors appointed under it, would not cause the original relationship between the trust company and the estate of decedent to be resumed. After the executors were appointed, the duties of the trust company as administrator ended, except to safely keep the property, close the administrator-ship, and turn it over to the executors. The only control the trust company then had over the jewelry was by reason of its appointment as administrator, which control was then reduced to the safekeeping of it, to be turned over to the executors, and, although in such capacity its bondsman would be responsible for the proper disposal of the same the trust company was at the same time primarily liable therefor.

The trust company having been served with notice in the replevin suit that plaintiff was claiming the ownership and- the right of possession of the jewelry before it had been turned over to the executors, it could not safely ignore the service of summons in the replevin suit and deliver the jewelry to the executors, who were also demanding the same. The trust company in such situation came into court, by its affidavit of interpleader, saying, in substance: We have possession of this jewelry; it is immaterial whether we have it as administrator or in our individual capacity; we are liable for the proper disposition of the same; we claim no interest in it under either capacity; our only concern is to be relieved of the responsibility of determining to whom the property shall be delivered, and we will do as the court directs us to do with it. This we believe the trust company had the right to do under Section 11265, General Code, and it followed the statute in so filing its affidavit of interpleader.

Moreover, when the order of interpleader was allowed and the executors filed their answer, the situation between plaintiff and the executors was substantially the same, and the issues between them as to ownership were exactly the same as if the trust company had turned over the jewelry to the executors before the replevin suit was commenced and plaintiff had commenced his action in replevin against them instead of against the trust company, as he undoubtedly would have had a right to do. We are therefore of the opinion, under the facts in this case, that it was immaterial whether the action in replevin was against the trust company in its individual capacity, or as administrator, or both, and we find no prejudicial error in the overruling of the motion to direct a verdict for the executors for this reason.

Fourth, as to the sufficiency of the evidence to support the allegations of the petition:

Counsel contend that the verdict is manifestly against the weight of the evidence in two particulars : First, that there was no evidence to show that the jewelry sold by the witness Jones to the plaintiff was the jewelry in controversy and exhibited at the trial; and, second, that plaintiff did not produce any evidence to prove that he was the owner of the jewelry in controversy and entitled to its immediate possession, and that therefore there was no evidence to overcome the presumption of ownership in the decedent by reason of her having possession of and wearing the jewelry from the time of its purchase until her death.

Taking the evidence as a whole, with all reasonable inferences that may be drawn from it, we cannot agree with this contention, and are of the opinion that there was evidence sufficient to warrant the jury in returning the verdict they did.

A fifth error complained of is that the court erred in admitting the evidence of the witness Jones, who sold the jewelry to plaintiff, because it was given by deposition, that he was not in court, and therefore could not identify the jewelry marked as exhibits and displayed at the trial as the jewelry he sold to plaintiff, and that there was therefore no evidence showing the connection between the jewelry sold by said Jones to plaintiff and that exhibited in court as the subject of the controversy.

We cannot agree with this contention that there was no evidence showing such connection. The question as to whether or not there was a sufficient identification of the jewelry sold by the witness Jones to plaintiff as the jewelry that was exhibited in court, and whether or not there was sufficient evidence to prove this connection, is a question that would go to the weight of this evidence rather than to its competency. We therefore find no prejudicial error in admitting it.

A sixth error complained of is that the court erred in admitting the will of decedent in evidence for the purpose of showing that decedent had not disposed of the jewelry, because it was not specifically devised in the will, and that other personal property had been specifically devised, and for the purpose of thus drawing the conclusion that decedent did not specifically devise the jewelry because she was not the owner of it.

While it may not have been proper to admit the will in evidence for the purposes mentioned, we do not find that its admission was prejudicial when taken in connection with the charge of the court concerning it, which is as follows:

“I say to you that, in giving construction to the will that has been introduced, it was not necessary for the decedent, in making disposition of her personal property, to have specifically mentioned the jewels in question. The will disposes of the jewels as completely as any other provision of the will disposes of any other item of property. It is not. for the jury in their deliberations in considering the will exhibit to decide whether the testatrix made the kind of will they think she ought to have made or not. She is dead and gone; she cannot speak. The law presumes that her will was just, that she knew what she was about, and did what she thought was right.”

The court further explained to the jury that the plaintiff, as the husband, was not required to take under the will, but could elect to take according to law, and thereby obtain one-half of the first $400 of her personal property regaining after the debts were paid, and a third of the balance, as his own, and the use for his life of one-third of all her real estate not used to pay debts. We therefore find no prejudicial error in this particular.

For a seventh error, it is contended that the court erred in refusing to give the second, third, fourth, fifth, eighth, and ninth special requests to charge, made after argument on behalf of the executors.

We have examined each of these requests, and, under the rule that such requests must state the law correctly, with the proper limitations, we find no error in the refusal to give them.

Finding no prejudicial error, the judgment of the court below is affirmed.

Judgment affirmed.

Washburn, P. J., and Pardee, J., concur.  