Green v. Ryan , 95 Ohio App. 345 ( 1953 )

The Court of Common Pleas sustained a demurrer to the petition and, the plaintiffs not desiring to plead further, the court entered judgment dismissing the "petition of the plaintiffs and amended prayer thereto" and ordering that "the defendants, Walter A. Ryan, Jr., recover from the plaintiffs their costs herein incurred." As will appear later, it seems that the name of Roland P. Ryan was omitted from this judgment for costs.

We do not find the demurrer among the papers, but are advised by counsel that the grounds of demurrer were that the court had no jurisdiction over the persons or subject matter and that no cause of action was alleged.

This appeal is from that judgment by the plaintiffs who constitute the Board of Trustees of the County Library District, Hamilton County, Ohio.

The petition to which the court sustained a demurrer discloses that Floris Armstrong Sackett died in 1911, leaving a will by which she created many trusts. This will was duly probated by the Probate Court of Hamilton County, and Walter A. Ryan, Sr., and Arthur R. Morgan were appointed executors and trustees. They duly administered the estate and under the order of the court delivered to themselves as trustees the securities constituting the corpus of the various trusts. They, as cotrustees, continued to administer the various trusts until the death of Arthur R. Morgan, and, thereafter, Walter A. Ryan, Sr., as sole trustee continued the administration of the trust until his death in 1947. After his death, the Probate Court appointed Walter A. Ryan, Jr., and Roland P. Ryan, as his successors, and they have continued to act as trustees to this date under the orders of said court.

The petition recited extensive allegations of maladministration, that the purposes of the trusts had been accomplished, that the trustees had no duties to perform, and that the trust should be terminated and the funds delivered to the beneficiaries. A copy of the will was attached to the petition and made a part thereof.

Based on these allegations the plaintiff prayed that the trusts "be declared to be free of all claims or interest therein of said Walter A. Ryan, Jr., and Roland P. Ryan as trustees or otherwise"; that an accountant be appointed to examine the records to disclose excessive charges and deductions; that the trustees be required to account for all charges and deductions not authorized by the Probate Court; and that a temporary order be issued against the trustees restraining them from disbursing any funds belonging to the trusts, and for such other relief as may be proper.

It will be observed that there is no mention of a declaratory judgment in the prayer. The only mention of a declaratory judgment is found in the caption of the case, in which the petition is described as one "for a declaratory judgment." It is true that the prayer is that it be "declared" that Walter A. Ryan, Jr., and Roland P. Ryan have no interest in the trust funds, but that is no more than a prayer for a finding as a predicate for the present affirmative relief thereafter prayed for.

In its opinion on the demurrer to this petition, the Common Pleas Court pointed out that if Walter A. Ryan, Jr., and Roland P. Ryan had been improperly appointed, or had improvidently administered the trusts, the exclusive remedy was in the Probate Court to secure their removal and an accounting of their trusteeship and the appointment of another trustee, and that the Common Pleas Court had no original jurisdiction over such matters.

The Common Pleas Court in its opinion then concluded that it did have jurisdiction to determine whether the trusts had reached the status where they should be terminated, and then proceeded to analyze the facts as disclosed by the petition and apply the law to those facts. After doing so, the court reached the conclusion that the trusts were charitable in their nature, that they were active, that the purpose of the trustor had not been fulfilled, that the trustees had active duties to perform, and, finally, that no case was alleged for a decree terminating the trusts. The court, therefore, sustained the demurrer.

We agree with the Common Pleas Court that these trusts are active charitable trusts and that no cause of action to terminate them and deliver the trust funds to the beneficiaries is alleged. We also agree with the court's conclusion that the Common Pleas Court would have jurisdiction to decree their termination had a cause of action therefor been alleged.

By Section 2107.46, Revised Code (Section 10504-66, General Code), the Probate Court and the Common Pleas Court are given concurrent jurisdiction of actions for direction or judgment in any matter respecting a trust, estate, or property of a decedent. However, before anyone other than the fiduciary can maintain such an action, request in writing must be made upon him to institute the action and 30 days given for compliance. There is no allegation of demand having been made, but we assume that the failure to demur specifically on that ground constitutes a waiver.

We concur in the opinion of the trial court that the petition states no cause of action within the jurisdiction of the Common Pleas Court, unless the fact that the petition is described in the caption as one for a declaratory judgment requires a specific and detailed declaration of rights, even though no conceivable purpose now or at any time in the future would be subserved thereby.

In the first place, we are of the opinion that the prayer shows this petition is not an action for a declaratory judgment. It is an action for relief upon an alleged existing cause of action. No inchoate right is asserted requiring a declaration now, so that the rights of the parties will be settled against that time when, if ever, the inchoate right matures. At most, it prays for the construction of a testamentary trust to determine whether at the present time it is a passive or active trust, and whether there has been maladministration by the trustees, whose present right to administer the trust is challenged. It is our judgment that it is an action seeking present relief based on alleged matured existing rights. Had the petition alleged a cause of action within the jurisdiction of the court, the only appropriate judgment would have been the granting of the present relief without anything other than a general finding for the plaintiff in the absence of a request for a separate finding of facts and conclusions of law.

But assuming that this is an action for a declaratory judgment, and that such an action imposes an inexorable duty to make a declaration, we are of the opinion that the judgment in this case satisfies the requirement. Indeed, it is our view a bare dismissal upon the sustaining of a demurrer to a petition when plaintiff disclaims any intention to amend is a sufficient declaration of the rights. This question has been before this court on several prior occasions. The latest case is that ofAlf v. Hunsicker, Clerk, 82 Ohio App. 197, 80 N.E.2d 511, in which no specific declaration of rights was made. In the opinion in that case, at pages 202 and 203, appears the following quotation from our opinion in Samuels v. United StatesHolding Co., 76 Ohio App. 163, 63 N.E.2d 445:

"In 16 American Jurisprudence, 287, Section 14, it is stated:

"``It is generally considered that the jurisdiction to render a declaratory judgment is discretionary in character.'

"And at page 288:

"``In general, the courts refuse to grant declaratory judgments unless it appears that such a judgment will fulfil the purpose of the declaratory judgments acts, by being of some practical help in ending the controversy or stabilizing disputed legal relations.'

"See, also, Schaefer v. First National Bank of Findlay,134 Ohio St. 511, 18 N.E.2d 263.

"The dismissal upon the opening statement was a declaration that the plaintiff has no cause of action for relief upon any theory of law applied to the facts. And as to a finding or declaration on the subject of trust relationship, the petition does not allege such a relationship. As to the relation of shareholder and corporation, that status was never in dispute. Not only was it admitted, but it was also found by the court. Under such circumstances, a declaratory judgment could be no more specific or efficacious than the Corporation Code itself."

It is said further in the Alf case:

"It should be said in conclusion that as the pleadings allege no accrued or inchoate cause of action for other relief, no possible prejudice could result to the plaintiff from failure to make an express affirmative declaration of rights, duties, and status in relation to the situation portrayed in the pleadings."

It has been suggested that there is a contradiction in law, where the court in terms "dismisses" the action and in the same order purports to declare rights.

The word, "dismiss," is appropriate in a judgment upon the merits. In 14 Ohio Jurisprudence, 315, Section 2, it is said:

"The term ``dismissal,' ``dismissed,' is commonly used in the decree or order of the court in disposing of actions on demurrer and in sustaining defenses raised by way of plea or answer; and in equitable actions especially are these terms frequently used in the decree rendered."

For these reasons, the judgment is affirmed.

Judgment affirmed.

MATTHEWS, P. J., and HILDEBRANT, J., concur.