
    Lindquist v. Hayes, Admx.
    
      Evidence — Court to determine whether answer will incriminate — Witness cannot be compelled to answer question, when — Not contempt to refuse to answer question not pertinent to issues — Administrators and executors' — Recovery of money concealed, embezzled or conveyed away— Section 10673 et seq., General Code — Possession of specific money cannot be recovered, when — Conveying away admitted by withdrawal and retention of money — Prima facie case established by preponderance of evidence, when— Fraudulent and criminal intent not necessary, when — Form and disposition of money withdrawn from bank immaterial —Refusal to answer question not contempt — Section 10675, General Code.
    
    1. The witness is not the sole judge as to whether the answer to a question will tend to incriminate him, but the question is one for the court. -
    2. If there is reasonable ground for apprehending that the answer of witness will tend to incriminate him, he cannot be required to answer.
    3. Refusal of the witness to answer a question which is not pertinent to. the issues is not contempt.
    4. In summary proceeding under-'Section 10673 et seq., General Code, for recovery of judgment and penalty against defendant claimed to have concealed, - embezzled, or conveyed away money of decedent, the administratrix cannot recover possession of the specific money.
    5. A defendant in a summary proceeding by administratrix under Section 10673 et seq.; General Code, to recover money of decedent claimed to have been concealed, embezzled, or conveyed away, who admits the withdrawal and retention of money from the bank, thereby admits conveying it away, and the administratrix, to establish a prima facie case, need only establish by preponderance of evidence that the money belonged to decedent.
    6. Fraudulent or criminal intent is not a necessary element in making out administratrix’s case under Section 10673 et seq., General Code, against one concealing, embezzling, or conveying away money of. decedent.
    
      7. In a summary proceeding by an administratrix under Section 10673 et seq., General Code, to recover a judgment for money of decedent claimed to be concealed, embezzled, or conveyed away, questions as to form and disposition of the money withdrawn from bank were immaterial and irrelevant, and hence defendant could not be held for contempt under Section 10675, General Code, for refusing to answer them.
    (Decided February 23, 1926.)
    Error: Court of Appeals for Lucas county.
    
      Mr. Allen J. Seney and Messrs. Boggs & Doty, for plaintiff in error.
    
      Messrs. Calkins, Storey & Nye and Messrs. Fraser, Hiett & Wall, for defendant in error.
   Williams, J.

The plaintiff, Inez Hayes, as administratrix of the estate of Paul C. Hayes, deceased, filed her petition in the court of common pleas of this county against the defendant, May Hayes Lindquist, alleging upon information and belief that the defendant had concealed, embezzled, and conveyed away money and property belonging to said decedent. The defendant filed an answer in which she admits the death of the decedent, and that Inez Hayes is the duly appointed, qualified, and acting administratrix of decedent’s estate, and denies all other allegations of the petition. The answer also contains three affirmative defenses. None of these, however, states facts sufficient to constitute a defense. The only issues, therefore, are those arising upon the petition.

Upon the trial of the case, without the intervention of a jury, the defendant was called by the plaintiff for cross-examination. During such examination she admitted that she had withdrawn from the Ohio Savings Association the sum of $14,120.37, and claimed that she believed that she owned the money so withdrawn. Thereupon she was asked in what form she drew this money, what she did with the money after she took it from the bank, how long the money was in her possession after she took it, and questions of a similar kind, all of which she refused to answer upon the ground that to do so might tend to incriminate her. The trial court held that to answer the questions would not in any way tend to show criminal guilt on her part, and ordered her to answer. As the defendant still refused, the trial court found her guilty of contempt under Section 10675, General Code, and sentenced her to be confined in the county jail until she answered the questions, or was otherwise discharged according to law. This error proceeding is prosecuted to reverse such judgment of the court below.

It is well settled in Ohio that, where a witness refuses to answer a question upon the ground that to do so might tend to incriminate him, the witness is not the sole judge as to whether answering the question will have such effect, but a question is presented for the determination of the court, and, if it appears from the circumstances of the particular case and the nature of the question asked that there is a reasonable ground to apprehend that his answer will have the effect claimed by him, he cannot be required to answer. McGorray, Sheriff, v. Sutter, 80 Ohio St., 400, 89 N. E., 10, 24 L. R. A. (N. S.), 165, 131 Am. St. Rep., 715, and State v. Murray, 82 Ohio St., 305, 92 N. E., 467.

Whether or not the witness was required to answer in the instant case is a question which we do not feel is fairly presented to us for determination, unless we find upon investigation that the questions put were material and relevant to the issues involved in the case on trial, for it is well established that it is not contempt to refuse to answer a question which is not pertinent to the issues. 6 Ruling Case Law, 498, Section 10; 13 Corpus Juris, 25, Section 32.

Were the questions which defendant refused to answer pertinent to the issues? The action below was a summary proceeding under Section 10673 et seq., General Code, to recover judgment and 10 per cent, penalty for money of the decedent which it is claimed the defendant had concealed, embezzled, or conveyed away. It' will be observed that under these sections the plaintiff could not recover the possession of the specific money so concealed, embezzled, or conveyed away. She was only entitled to recover, if at all, a money judgment. The defendant, by admitting that she withdrew the money from the bank and retained it under the belief that she owned it, admitted that she had conveyed it away within the meaning of that term as used in Section 10673. To establish a prima facie case for the conveying away of said money, under the issues made up on the petition, the plaintiff, in view of the admission, was only required to establish by a preponderance of the evidence that the money in question was money of the decedent and assets of and belonging to the decedent’s estate. Fraudulent or criminal intent is not a necessary element in making ont the plaintiff’s'case under these sections. Evidence as to the form in which she withdrew the money from the bank, and as to what she did with it, and how long it remained in her possession after-wards, is immaterial and irrelevant. In fact none of the questions which the defendant refused to answer under the claimed exercise of the constitutional right against self-incrimination was such as would by a responsive answer elicit a fact pertinent to the issues. It follows" that the defendant was not guilty of contempt.

The judgment of the court below is therefore reversed, and the plaintiff in error discharged.

Judgment reversed.

Richards and Young, JJ., concur.  