Foelsch v. Farson , 2020 Ohio 1259 ( 2020 )

[Cite as Foelsch v. Farson, 2020-Ohio-1259.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
ANNE F. FOELSCH JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellant Hon. Craig R. Baldwin, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 19CA000036
MICHAEL T. FARSON, et al.,
Defendants-Appellees O P I N IO N
CHARACTER OF PROCEEDINGS: Appeal from the Knox County Common
Pleas Court, Probate Division, Case No.
20188002A
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 31, 2020
APPEARANCES:
For Plaintiff-Appellant For Defendants-Appellees
JACK L. MOSER, JR., ESQ. ADAM B. LANDON
Jack Moser Law MTV Co., LPA Critchfield, Critchfield & Johnston, LTD
122 East high Street, Suite 200 10 South Gay Street
Mount Vernon, Ohio 43050 P.O. Box 469
Mt. Vernon, Ohio 43050
Knox County, Case No. 19CA000036 2
Hoffman, P.J.
{¶1} Appellant Anne Foelsch appeals the summary judgment entered by the
Knox County Common Pleas Court, Probate Division, dismissing her complaint against
Appellees Michael T. Farson, Phyllis Farson, Charles A. Farson, Deborah S. Farson, Paul
J. Farson, Vernon J. Farson, Mary Farson-Collier, James V. Collier, Thomas Farson,
Charlotte Farson, Yvonne Farson, and Joseph Farson, and the judgment awarding
Appellees judgment on their counterclaim for declaratory judgment.
STATEMENT OF THE FACTS AND CASE
{¶2} Josephine Farson and her husband John had eight children. Seven of their
children were living at the time of John’s death in 2003: Appellant herein, Anne Foelsch;
and Appellees Mary Farson-Collier, and Michael; Charles; Paul; Joseph; and Thomas
Farson.
{¶3} On August 11, 2004, Josephine created a trust with herself as the named
trustee, and which trust equally divided the trust assets between her seven living adult
children and named all seven children as successor trustees upon her death. The
document also contained a competency clause, identifying a method to challenge
Josephine’s competency. Josephine deeded her real estate to the trust in 2006.
{¶4} The trust included two forfeiture clauses, both stating any beneficiary who
challenges or contests the trust should be treated as predeceased without children upon
distribution of the trust assets.
{¶5} Sometime in 2011, Josephine suffered an intracranial hemorrhage. In
August of 2011, she executed two amendments to the trust. The first named only Michael
and Charles as successor trustees, rather than all seven children. The second
amendment changed the distribution to grant specific parcels of real estate to Charles,
Knox County, Case No. 19CA000036 3
Paul, and Joseph, and to distribute her remaining assets between all seven children in
such a way as to seek equal distribution.
{¶6} In September of 2015, Josephine executed a third amendment to the trust,
naming Paul, Michael and Charles as successor trustees.
{¶7} On August 18, 2017, Josephine was diagnosed with pancreatic cancer.
She opted not to seek aggressive treatment. On August 28, 2017, Josephine signed a
deed transferring 29.647 acres of land from the trust to Charles. She executed a fourth
amendment to the trust on September 6, 2017. This amendment distributed specific
parcels of real estate to Michael, Thomas, Paul, and Joseph, and left $60,000 each to
Mary and Anne in lieu of real estate. The amendment did not specify a distribution to
Charles, who had received the transfer from the trust on August 28. The document stated
any additional assets were to be “divided according to the desires of my heirs and
trustees.” Josephine passed away on October 24, 2017.
{¶8} Appellant filed the instant action on March 23, 2018, which included eight
causes of action: a request for an accounting; breach of fiduciary duty by the successor
trustees, which included a demand for recovery of trust property and removal of the
trustees; claims the trust amendments are invalid due to undue influence, incompetency,
and conspiracy; and intentional interference with expectancy of inheritance. Appellees
counterclaimed, seeking a declaratory judgment enforcing the forfeiture clause found in
the trust against Appellant.
{¶9} On July 3, 2019, the trial court granted summary judgment dismissing
Appellant’s claims of lack of testamentary capacity, undue influence, intentional
interference with expectancy of inheritance, and conspiracy. The trial court declined to
Knox County, Case No. 19CA000036 4
grant summary judgment on the counterclaim, or on Appellant’s remaining causes of
action.
{¶10} Following a final hearing on July 11, 2019, the trial court granted judgment
in favor of Appellees on their counterclaim, declaring the forfeiture provision of the trust
applied against Appellant, and she was not a beneficiary of the trust pursuant to its terms.
The trial court found because she was not a beneficiary of the trust, she lacked standing
as to her remaining causes of action, and accordingly dismissed them.
{¶11} It is from the July 3, 2019, and September 11, 2019, judgments of the trial
court Appellant prosecutes this appeal, assigning as error:
I. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
GRANTING SUMMARY JUDGMENT TO APPELLEES ON APPELLANT'S
CLAIM FOR UNDUE INFLUENCE.
II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
GRANTING SUMMARY JUDGMENT TO APPELLEES ON APPELLANT'S
CLAIM FOR LACK OF TESTAMENTARY CAPACITY.
III. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
FINDING THAT APPELLANT'S ACTION TRIGGERED THE FORFEITURE
CLAUSE OF THE TRUST.
IV. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
GRANTING SUMMARY JUDGMENT TO APPELLEES ON APPELLANT'S
CLAIM FOR INTERFERENCE WITH EXPECTANCY OF INHERITANCE.
Knox County, Case No. 19CA000036 5
I.
{¶12} In her first assignment of error, Appellant argues the court erred in granting
summary judgment on her claim for undue influence. She argues she presented sufficient
evidence to warrant a presumption of undue influence, and with or without the benefit of
the legal presumption, she presented sufficient circumstantial evidence of undue
influence to withstand summary judgment.
{¶13} Summary judgment proceedings present the appellate court with the unique
opportunity of reviewing the evidence in the same manner as the trial court. Smiddy v.
The Wedding Party, Inc., 30 Ohio St.3d 35, 36 (1987). As such, we must refer to Civ. R.
56(C) which provides in pertinent part:
Summary Judgment shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, written admissions, affidavits,
transcripts of evidence, and written stipulations of fact, if any, timely filed in
the action, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law. No evidence
or stipulation may be considered except as stated in this rule. A summary
judgment shall not be rendered unless it appears from the evidence or
stipulation, and only from the evidence or stipulation, that reasonable minds
can come to but one conclusion and that conclusion is adverse to the party
against whom the motion for summary judgment is made, that party being
entitled to have the evidence or stipulation construed most strongly in the
party’s favor.
Knox County, Case No. 19CA000036 6
{¶14} Pursuant to the above rule, a trial court may not enter summary judgment if
it appears a material fact is genuinely disputed. The party moving for summary judgment
bears the initial burden of informing the trial court of the basis for its motion and identifying
those portions of the record demonstrating the absence of a genuine issue of material
fact. The moving party may not make a conclusory assertion the non-moving party has
no evidence to prove its case. The moving party must specifically point to some evidence
which demonstrates the moving party cannot support its claim. If the moving party
satisfies this requirement, the burden shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact for trial. Vahila v. Hall, 77
Ohio St.3d 421, 429, 1997-Ohio-259, citing Dresher v. Burt, 75 Ohio St.3d 280, 1996-
Ohio-107.
{¶15} In order to show undue influence, the plaintiff must demonstrate: (1) a
susceptible testator, (2) another's opportunity to exert influence, (3) the fact of improper
influence exerted or attempted, and (4) the result showing the effect of such influence.
West v. Henry, 173 Ohio St. 498, 501, 184 N.E.2d 200 (1962). The mere existence of
undue influence or an opportunity to exercise it, even coupled with an interest or motive
to do so, is not sufficient to invalidate a will. Id. Rather, the influence must be actually
exerted in the mind of the testator with respect to the execution of the will at issue. Id. The
plaintiff must show the undue influence resulted in the making of testamentary
dispositions the testator otherwise would not have made. Id. Further, a claim of undue
influence must be proven by clear and convincing evidence. Ament v. Reassure Am. Life
Ins. Co., 180 Ohio App.3d 440, 2009–Ohio–36, 905 N.E.2d 1246, ¶ 38 (8th Dist.
Cuyahoga).
Knox County, Case No. 19CA000036 7
{¶16} The same standard applies in establishing undue influence with respect to
a trust. See R.C. 5804.06 (“A trust is void to the extent its creation was induced by fraud,
duress, or undue influence. As used in this section, ‘fraud,’ ‘duress,’ and ‘undue influence’
have the same meanings for trust validity purposes as they have for purposes of
determining the validity of a will.”).
{¶17} However, undue influence is presumed if the challenging party establishes
a fiduciary or confidential relationship existed between the decedent and a beneficiary.
See, e.g., In re Estate of Kiefer, 2017-Ohio-6997, 95 N.E.3d 687, ¶ 8; Diamond v.
Creager, 2nd Dist. Montgomery No. 18819, 2002 WL 313137, at *3–*4 (Mar. 1, 2002).
Where such a relationship exists, “‘the transfer is looked upon with some suspicion that
undue influence may have been brought to bear on the donor by the donee.’” Bayes v.
Dornon, 2015-Ohio-3053, 37 N.E.3d 181, ¶ 48 (2d Dist.), quoting Studniewski v.
Krzyzanowski, 65 Ohio App.3d 628, 632, 584 N.E.2d 1297 (6th Dist.1989).
{¶18} The trial court found Appellant presented evidence as to the first two
elements of undue influence: a susceptible testator, and another’s opportunity to exert
influence. The trial court found Appellant failed to present evidence of the last two
elements: the fact of improper influence exerted or attempted, and the result showing the
effect of such influence. The trial court further found Appellant failed to demonstrate a
confidential relationship, and was therefore not entitled to the presumption of undue
influence.
{¶19} Presumption of Undue Influence: Appellant first argues she was entitled
to a presumption of undue influence, as her siblings Mary and Michael both occupied a
confidential and/or fiduciary relationship with respect to Josephine.
Knox County, Case No. 19CA000036 8
{¶20} “A ‘fiduciary relationship’ is one in which special confidence and trust is
reposed in the integrity and fidelity of another and there is a resulting position of
superiority or influence, acquired by virtue of this special trust.” Stone v. Davis, 66 Ohio
St.2d 74, 78, 419 N.E.2d 1094 (1981). A fiduciary's role may be assumed by formal
appointment or may arise from a more informal confidential relationship, wherein “one
person comes to rely on and trust another in his important affairs and the relations there
involved are not necessarily legal, but may be moral, social, domestic, or merely
personal.” Craggett v. Adell Ins. Agency, 92 Ohio App.3d 443, 451, 635 N.E.2d 1326 (8th
Dist.1993).
{¶21} A “confidential relationship” exists when trust and confidence is placed in
the integrity and fidelity of another. Young v. Kaufman, 8th Dist. Cuyahoga No. 104990,
2017-Ohio-9015, 101 N.E.3d 655, ¶ 58. To support a presumption of undue influence
between a parent and a child, a confidential or fiduciary relationship must exist separate
and apart from the parent-child relationship. Jeffreys v. Dennis, 5th Dist. Guernsey No.
96CA25, 1996 WL 753141, *3 (Dec. 2, 1996).
{¶22} As to Appellee Mary Farson-Collier, Appellant presented evidence Mary
moved in with Josephine to care for her in August of 2017, and Josephine was fearful of
going to a nursing home. In addition to residing at the home, there is evidence Mary took
care of providing Josephine’s medication, and communicated with medical professionals
concerning Josephine’s medical needs and administration of her pain medication. We
find the trial court did not err as a matter of law in finding this evidence of caregiving did
not rise to the level of a confidential or fiduciary relationship. We agree with the trial court
Appellant failed to present evidence detailing the amount of care provided by Mary or the
Knox County, Case No. 19CA000036 9
extent of the relationship between Mary and Josephine, and therefore failed to present
evidence the relationship between them extended beyond parent-child caregiving to the
level of a confidential relationship.
{¶23} Appellant presented evidence Appellee Michael Farson drafted the trust
amendment, and points to Michael’s deposition testimony, “I had probably three or four
drafts of property distribution before I got my mother to agree to one.” M. Farson
Deposition, p. 108.
{¶24} However, we find the trial court did not err in finding Michael was not in a
fiduciary or confidential relationship with Josephine. The fact he had three or four drafts
before he was able to get his mother to agree demonstrates she was still controlling the
distribution of her assets, and he was attempting to draft an amendment which complied
with her desires. The mere fact Michael was involved in advising his mother and drafting
documents to implement her wishes is insufficient to demonstrate he stood in a fiduciary
or confidential relationship to her. In fact, courts have been reluctant to apply the
presumption and find a fiduciary or confidential relationship when the person drafting
estate documents is related to the testator marriage or blood. See, e.g., Lah v. Rogers,
125 Ohio App.3d 164, 173, 707 N.E.2d 1208, 1213 (11th Dist. Lake 1998); Golub v.
Golub, 8th Dist. Cuyahoga No. 97603, 2012-Ohio-2509. Appellant did not present
evidence the relationship between Michael and Josephine extended beyond that of a child
attempting to help a parent draft documents to accomplish her desires for distribution of
the trust assets.
{¶25} Circumstantial Evidence of Undue Influence: Appellant also argues the
court improperly weighed the evidence and judged the credibility of witnesses in finding
Knox County, Case No. 19CA000036 10
she failed to present evidence of the third and fourth prongs of the test for undue influence
as set forth in West, supra.
{¶26} Appellant cites to testimony by Joseph and Thomas Farson indicating
Josephine lived in a controlled environment and Mary “bossed and ordered” Josephine
around. She cites to Joseph Farson’s testimony he personally believed Mary, Charles,
Paul and Michael pressured Josephine to make changes to the trust. She points to
evidence Michael drafted the amendment to the trust, as cited above, and Mary controlled
Josephine’s medication. She also notes the evidence demonstrated the notary who
witnessed Josephine sign the amendment did not question her understanding of the
document.
{¶27} We find the trial court did not improperly weigh or judge the credibility of
these witnesses. Rather, the trial court found their testimony insufficient to provide
evidence improper influence was exerted specifically over the amendment to the trust,
and further to demonstrate such alleged influence resulted in Josephine amending the
trust to distribute property in a way she otherwise would not have.
{¶28} Other than the “hunch” or personal feelings of Joseph, Appellant presented
no evidence of any control placed upon Josephine at times relevant to the trust
amendments, or of the transfer or property to Charles, specifically related to her execution
of the amendment or real estate transfer. She presented no evidence the ultimate
disposition of assets was not in accordance with Josephine’s will. While she presented
evidence Josephine desired to divide her property equally amongst her seven children,
the record is replete with evidence Josephine desired to accomplish her disposition of
assets in a way which would not result in the farm property being sold, and therefore
Knox County, Case No. 19CA000036 11
desired to divide the real estate between her sons and leave cash to Mary and Anne, who
resided in California, in lieu of their interest in the farm. The mere fact she took advice
from her family on how to accomplish her wishes is not evidence her will was overborn
and the trust amendments resulted in a distribution of assets Josephine would otherwise
not have made.
{¶29} Further, as noted by the trial court, while Appellant points to evidence of
Mary’s control over Josephine’s medication and daily activities, not only did Appellant fail
to present any evidence of Mary’s control over Josephine’s distribution of the trust assets,
but Mary also received exactly the same share as Appellant of the final trust distribution.
{¶30} We find the trial court did not err in granting Appellees’ motion for summary
judgment on Appellant’s cause of action for undue influence. The first assignment of error
is overruled.
II.
{¶31} In her second assignment of error, Appellant argues the court erred in
granting Appellees’ motion for summary judgment on the issue of lack of testamentary
capacity.
{¶32} Testamentary capacity exists when the testator has sufficient mind and
memory to: (1) understand the nature of the business in which he is engaged, (2)
comprehend generally the nature and extent of his property, (3) hold in his mind the
names and identity of those who have natural claims upon his bounty, and (4) appreciate
his relation to the members of his family. Birman v. Sproat, 47 Ohio App.3d 65, 67–68,
546 N.E.2d 1354 (1988), quoting Niemes v. Niemes, 97 Ohio St. 145, 119 N.E. 503,
paragraph four of the syllabus (1917).
Knox County, Case No. 19CA000036 12
{¶33} It is not enough to show the testator had deteriorating health, even if the
testator suffered from poor medical health at the time the documents were executed.
Such health decline must have actually affected the testator's capacity to execute the will.
Martin v. Dew, 10th Dist. Franklin No. 03AP–734, 2004-Ohio-2520, 2004 WL 1109562, ¶
19. (“[E]vidence that [the] decedent suffered from dementia or Alzheimer's disease on
[the] day she executed [her] will, ‘standing alone, is insufficient to raise a fact issue as to
a lack of testamentary capacity without some evidence that the disease rendered her
incapable of knowing her family or her estate or understanding the effect of her actions.’”)
Martin at ¶ 19, quoting In re Estate of Hall, Tex. App. No. 05–98–01929–CV, 2001 WL
753795 (July 5, 2001), * 4.
{¶34} Appellant argues the court erred in weighing the evidence, placing undue
weight on the affidavit of Josephine’s doctor which stated she had testamentary capacity
on the date of question. The trial court outlined all of the evidence presented by Appellant,
and also set forth in her brief before this Court, concerning Josephine’s forgetfulness, her
hallucinations caused by pain medication, her susceptibility to the influence of others, and
her deteriorating memory and health. However, the trial court concluded:
Even if the Court takes all of the above evidence as uncontroverted
fact, Foelsch has failed to present any evidence that on or about the dates
of the amendments and deed execution Josephine did not understand the
nature of the documents she signed, that she did not understand the nature
and extent of her property, that she did not recognize the names of her
children and others who might have a natural claim on her bounty, or that
Knox County, Case No. 19CA000036 13
she did not appreciate the relationship between herself and her children.
Instead, Foelsch presents evidence that Josephine could become confused
or forgetful, and that she could become “totally out of it” when under the
influence of large amounts of pain medication. Foelsch presents no
evidence that Josephine did not recognize any of her children, or was ever
confused about what property she actually owned. Foelsch did not present
any evidence that Josephine was under the influence of pain medication on
the days or times she signed documents to the extent that she did not know
what she was signing.
{¶35} Judgment Entry, July 3, 2019.
{¶36} Contra to Appellant’s argument, the trial court did not weigh the evidence.
The trial court properly viewed the evidence in the light most favorably to Appellant, and
concluded none of the evidence demonstrated Josephine lacked testamentary capacity
as defined by Niemes, supra. We find the trial court did not err in granting summary
judgment to Appellees on Appellant’s claim of lack of testamentary capacity.
{¶37} The second assignment of error is overruled.
III.
{¶38} In her third assignment of error, Appellant argues the trial court erred in
finding the forfeiture clause in the trust was enforceable against her.
{¶39} The original trust document included two forfeiture provisions, which the trial
court found enforceable against Appellant. The first, found in Section 5.05, states the
trust shall treat any beneficiary as predeceased without children should a beneficiary
Knox County, Case No. 19CA000036 14
legally challenge the trust, its provisions, or its asset distributions. Section 5.08 states
any beneficiary who contests any aspect of the trust or attempts to set aside, nullify, or
void the trust or the distribution thereof in any way shall be treated as predeceased without
children upon distribution. Section 5.08 further directed the trustees to distribute the sum
of $1.00 to any beneficiary breaching this directive.
{¶40} Ohio has long recognized the enforceability of forfeiture clauses, which
essentially operate to disinherit an intended beneficiary of a will or trust if such beneficiary
contests the validity of the will or trust. See, e.g., Bradford v. Bradford, 19 Ohio St. 546(1869). This Court has recognized there is no “good faith” exception to the enforceability
of a forfeiture clause. Bender v. Bateman, 33 Ohio App. 66, 69-70, 168 N.E. 574 (5th
Dist. Muskingum 1929). In so holding, we noted:
A testator has unquestioned right to attach any condition to his gift
which is not violative of law or public policy. The legatee may choose to take
the gift with the conditions attached, or reject it. It should be the first duty of
a court to guard the intention of the testator, and not to substitute official
duress….It is the moral, economic rule, and the rule of written law, that one
cannot both eat his cake and have it.
{¶41} Id. at 70.
{¶42} Appellant first argues the court erred in rejecting her argument the forfeiture
clause should not apply to the amendments to the trust because it was stated only in the
original trust, and not restated in the amendments. R.C. 5801.01(W) specifically defines
Knox County, Case No. 19CA000036 15
“trust instrument” as “an instrument executed by the settlor that contains terms of the trust
and any amendments to that instrument.” We find pursuant to the express language of
the statute, the amendments are a part of the trust instrument, and therefore subject to
the forfeiture clause in the same manner as the original trust terms.
{¶43} Appellant next argues pursuant to Moskowitz v. Federman, 72 Ohio App.
149, 51 N.E.2d 48 (9th Dist. Summit 1943), public policy, good faith, and other
circumstances should be considered in determining whether a forfeiture clause should be
enforced in a given case. We note the Ninth District Court of Appeals later declined to
follow this dicta in Moskowitz, instead applying the rule of law set forth in Bender, supra.Modie v. Andrews, 9th Dist. Summit No. C.A. 21029, 2002-Ohio-5765, ¶22. Therefore,
Moskowitz is no longer good law in the Ninth District Court of Appeals in which it
originated, and we decline to apply it as law in the instant case.
{¶44} Appellant cites a number of cases in which a forfeiture clause was not
enforced against a beneficiary who filed a legal action against the estate or the fiduciary.
However, none of these cases involve a direct attack on the validity of the document itself.
In Kirkbride v. Hickok, 155 Ohio St. 293, 98 N.E.2d 815 (1991), the beneficiaries sought
construction of the will, and did not seek to set the will aside. In both Modie, supra, and
Kasapis v. High Point Furniture Co., 9th Dist. Summit No. 22758, 2006-Ohio-255, the
beneficiary sought review of the fiduciary’s conduct in administering the estate, and did
not challenge the documents themselves. The beneficiary in Riber v. Peters, 12th Dist.
Fayette No. 81-CA-27, 1982 WL 3247 (October 27, 1982), challenged certain
conveyances made by the fiduciary, but did not challenge the will itself.
Knox County, Case No. 19CA000036 16
{¶45} We find these cases distinguishable from the case at bar. We find the trial
court correctly concluded Appellant initiated and maintained causes of action directly
attacking and attempting to invalidate the trust and its amendments, thereby invoking the
forfeiture clause.
{¶46} The third assignment of error is overruled.
IV.
{¶47} In her fourth assignment of error, Appellant argues the trial court erred in
granting summary judgment to Appellees on her claim for intentional interference with
expectation of inheritance.
{¶48} The elements of the tort of intentional interference with expectation of
inheritance are: (1) an existence of an expectancy of inheritance in the plaintiff; (2) an
intentional interference by a defendant with the expectancy of inheritance; (3) conduct by
the defendant involving the interference which is tortious, such as fraud, duress or undue
influence, in nature; (4) a reasonable certainty the expectancy of inheritance would have
been realized, but for the interference by the defendant; and (5) damage resulting from
the interference. Firestone v. Galbreath, 67 Ohio St.3d 87, 88, 616 N.E.2d 202, 203
(1993).
{¶49} Appellant’s claim relies for its validity on her argument concerning undue
influence, which we rejected in Assignment of Error One, above. In granting summary
judgment for Appellees on her claim for intentional interference with expectation of
inheritance, the trial court stated:
Knox County, Case No. 19CA000036 17
Foelsch must provide evidence of a tortious act, such as fraud,
duress, or undue influence, to succeed. As addressed in other portions of
this judgment entry, Foeschl [sic] has not provided evidence of fraud,
duress, or undue influence sufficient to overcome summary judgment. As
Foeschl [sic] cannot provide evidence related to that element of this cause
of action, she cannot overcome summary judgment on this claim.
{¶50} Judgment Entry, July 3, 2019, ¶38.
{¶51} We agree with the reasoning of the trial court. The fourth assignment of
error is overruled.
{¶52} The judgment of the Knox County Common Pleas Court, Probate Division,
is affirmed.
By: Hoffman, P.J.
Baldwin, J. and
Wise, Earle, J. concur