*1 contrary. required That ele- statute Mm assume all the others remains with ment of the situation judged, and becomes with is to be conduct statutory phrase, part definition of them a distance ahead.” “assured clear no case was collision between the instant there In plaintiff’s cars. because Plaintiff, defendant’s alleged unlawful was confronted conduct, defendant’s emergency not bound which he was to antici- an pate, clear distance if the “assured ahead” even applica- portion Code, General of Section clearly required to submit case court was ble, to the jury. judgment the trial court will therefore be

The proceed- cause remanded for further reversed, ings according to law.

Judgment reversed. J., "Washburn, concurs. P. J., not

Punk, participating. Kresge S. B. S. D. K. Co. Co., Appellant, v. Appellees.

et al., *2 (Decided 21, 1935.) November Harry Mr. Moore, William B. Mr. L. Deibel and appellant. é Messrs. Galvin for Babin, Company; Messrs. Kuth & Ehrhe, for The B. K.D. Metsger, Metsger, Messrs. McCorhhill é for E. Juliet Josephine L. Cobourn, Mr. K. Moff it. Josephine Harry and Yogel, guardian R>. M. Moff, executrix, and Mr. Raymond H. Moff. J. This cause comes into this court both Nichols, appeal by Kresge Company. error and S. S. Company Motion is behalf of The B. D. K. appeal, being dismiss claimed for motion chancery proceeding. that the action below was not a litigant right “Where defeated is doubtful of his appeal, may prosecute appeal he error concur- rently Appeals. to the Court of *3 appeal prosecuted

“Where both and error have been Appeals, perfected appeal suspends to the Court of a judgment the of the trial court; and if a motion to by appellee duty dismiss is filed the it the becomes first appellate of the court to determine whether the case appealable; chancery, ap- is if the case one is in the pellate hearing determining court errs the error dismissing appeal, case the when such motion * * * undecided. remains appeal pending the motion “While to dismiss the is appellant and remains the undecided, cannot be com pelled try elect whether he will his case on error appeal.” Trust Co. v. 122 Lessovitz, Union Ohio 171 N. 849. St., 406, E., must,

This court first therefore, decide the motion appeal. proceeding originally to dismiss the The was Declaratory Judgments instituted under the The Act. question proceeding brought is a so whether is a chan- cery proceeding; chancery proceeding, if a motion to appeal dismiss the must he overruled, otherwise sus- jurisdiction Appeals as the Court of tained, the appeal expressly by the trial of the cases on limited chancery Wagner Armstrong, Constitution to cases. 113 N. St., 443, E., Ohio Common The action was instituted the Pleas provisions seq., under Court the Section et 12102-1, by Company It is claimed The B. D. K. General Code. designated appellees that the Declara- herein, et al., statutory tory Judgments special authorizes a Act ceeding, appealable is not to this and, therefore, court. question opinion appealabil- are of of the We ity depend solely upon case does not whether remedy by right are created but statute, proposition principles to whether the broader basic by proceedings equit- authorized are statute equitable and based able in character some doe-- cognizable formerly chancery. in courts of trine by rights prescribes are created which Where statute by they particular method are to en- right remedy and the and both unknown forced, to jurisprudence, equitable appealable the case is not jurisdiction this since court court, is lim- chancery plain- Constitution cases. ited tiffs are persons interested in the matters defined provisions 12102-2 of Sections and 12102-4, Gen- bring proceeding. authorized to eral and are Code, apparent Looking pleadings, that the issues in the submitted Common Pleas Court are: authority 1. Reformation of the lease made under Henry Moff, deceased, of the will of which will had probate been theretofore admitted the Probate county Columbiana wherein Court of administration will annexed estate of de- granted; céased, *4 Specific performance

2. of a written contract a lease; make

3. will of Construction Moff, deceased;

105 rights parties 4. Declaration of under the lease as executed and as reformed. equitable specific performance

An action for is belonged jurisdiction its character and to the exclusive chancery adoption of courts of before the of the civil changed by adop character not code this its 54 N. Co., tion. Hull v. Bell Bros. & Ohio 43 St., 228, Assignee, 61 E., 584; Pierce, v. Ohio Stewart, St., 56 N. 201. E., may generally petition

It re- be stated that a for the equitable formation of an instrument in character. remedy prescribed by Declaratory Judgments Act is not exclusive. The civil action for reformation recognized of written contracts is as one of the dis- equity jurisdiction presents tinctive fields of a chancery case.

Both before and since the constitutional amendment appealable of 1912 the character of a case been has pleadings held from the determinable and the issues thereby. Parsons, Hummer v. 111 St., 595, Ohio Grapes 146 E., 62; N. 49 Barbour, Ohio St., 669, N. 306. E., petition is true that the case seeks

It this a con- struction the will of Moff, deceased, but only real relief is incidental issue made pleadings, which is the reformation of the exe- by devisees and under the cuted executors Henry Moff, So, will of deceased. we not deter- need whether all cases an action for the mine construc- chancery may proceeding, tion of will but it authority statutory in the absence of noticed equitable jurisdiction declaratory courts of render judgments in certain one of which is to circumstances, Judgments construe trusts and wills. Freeman Ed.), (5th Section of a action for reformation contract is a

That an Supreme chancery proceeding is held Court *5 106 Bingham Nypano St., Co., case of Rd. Ohio 147 N. E., petition prays the contract likewise

While binding question a valid and of lease be declared parties, of this between the the determination depends upon issue pleadings, the other issues made think and we a fair construction thereof clearly pleadings, shows that the issues made equitable sought, as well as ultimate relief principle formerly cognizable in and courts chan- cery. We conclude that the action the Common chancery, appeal- Court was in and is, therefore, Pleas able. We do not determine that

every brought action Declaratory Judgment appealable. under the Act is appeal The motion to dismiss the in this case over- ruled.

Motion overruled. concur. JJ., Roberts Carter,

(Decided 23, 1935.) November county, J. late of Columbiana Moff, Nichols, simple died Ohio, December, 1915, seized in fee of a parcel of land known as the Commercial Block duly Salem, His will, Ohio. admitted probate and record in the Probate Court of Colum- county, following biana Ohio, contained the items: My my just “First: will is that all and fu- debts expenses paid my neral out of estate as soon after my decease shall be found convenient. give, bequeath my I

“Second: devise and beloved all rest, wife Kate residue and remainder of my during estate, the same to be hers her life time my provided she remains at of her date my re-marriage, then it death will that at her my go pass death all that remain estate shall my Ralph A. Moff children Walter W. Moff leaving share and share and if either die chil- alike, their wife, dren, said child or children to take share my parent living. would if In case have taken bequeath re-marry Moff I should then will and part my left her the estate at undivided one-third belong absolutely go that time and the balance to my Moff and two sons to-wit: Walter A. aforesaid, Ralph if die W. Moff share and share either alike, leaving to have child child or children or children said *6 parent to if the share their been entitled would have living. my my have estate

“Third: When executors settled my on far from this time so as debts concerned my long right, remains wife have the so as she can my my personal dispose to sell and of real or widow, property using proceeds live and to she my living. I if assist children same as could my my “Fourth: I name Moff and son wife, Kate request my A. I executors, Walter Moff to be and of for the Probate Court to direct the omission bond necessary reposed trust here them it be and should pay carry pay legacies out the to visions of any my debts or to or to

my my I to sell will authorize Executors price of real and such estate for such they prudent proper to make, terms as and deem deeds payment purchasers thereof execute and deliver to money. of sale consideration And I authorize said my personal property real estate or of made any order of either at Public or Private without Sale request appraisement I if Court and that no be made legally can be done.” Henry surviving' widow, Moff left Kate him his Ralph A. Moff W. Moff, and two and sons, Walter duly ap- in the will were Moff. The executors named pointed qualified of Colum- and in the Probate Court county proceeded estate, to administer biana day January, 1923, such 19th and on about the final fourth termed their filed what was executors entry account, obtained Probate Court an county, showing Columbiana the estate settled Ohio, payment in so far as the were concerned and of the testator debts

the executors were excused filing during court from the life of further accounts Kate Moff. widow, day September, Ealph Moff, On the 9th W. one of the sons of leav- Moff, testate, said died ing legatee his Juliet Moff, E. his sole duly devisee under his which was admitted to will, duly probate, subsequently E. Juliet Moff was appointed qualified as the executrix under will. day

On or about the 16th October, Moff and A. Moff, "Walter as executors of the estate together E. Moff, deceased, Moff, with Juliet Ealph executrix of deceased, the estate of W. Moff, and Kate A. Moff Moff, Walter and Juliet E. individually, proposal Zinn and a written agents Kresge Company, for Eobbins, S. S. to lease Broadway, property designated as #11-13-13%, being property, upon Salem, Ohio, the same fifty period Commercial Block located, years, beginning $3,000 March at a rental of 1, 1930, *7 per monthly year, payable equal net in in installments conformity advance to all covenants conditions, agreements and to the contained a form of lease attached

proposal part and made thereof. a This posal day accepted was, on the 28th of October, 1929, Kresge Company, thereby S. S. became valid premises written contract for the of the proposal ac- cordance with terms of the and form the lease attached thereto. day pur- the 9th

Thereafter, on of November, 1929, written to, suant contract last above referred Kate Moff A. and Walter as of the Moff, executors E. Moff ex- Moff, deceased, estate of Juliet as Ealph of of ecutrix the estate W. Moff, deceased, E. as well Moff, Moff, Walter A. and Juliet Moff, vice-president Kresge Company, as its the S. S. prem- secretary, and assistant executed a lease of city Salem, as Commercial Block of ises known Kresge Company period for the Ohio, J3. S. fifty years beginning wherein the S. 1, 1930, March Kresge Company agreed pay to the lessors S. premises, demised as follows: rental such fifty ($150,000.00) thousand “One hundred Dollars payable the rate of as follows: At Three Thousand ($3,000.00) year during per Dollars net the term equal monthly payable in hereof, installments Two Fifty ($250.00) each in on advance, hundred Dollars during day every first business of each and month ending beginning hereof, the term February March 1, 1930, 1980.” upon written form This instrument of lease was printing, on Estate De- endorsed back in “Beal partment Company, Kresge Detroit.” The S. S. ac- knowledgment A. in- of Kate Moff and Walter Moff, dividually, appear original printed form on the paper and on the same sheet of with the rest lease, acknowledgment proper official the lease. The Kresge Company appears upon the same the S. S. paper sheet of rest of the lease. The acknowl- edgment of Kate Moff and A. Moff Execu- Walter as tors of the estate of as well Moff, deceased, acknowledgment E. Moff in of Juliet her ca- pacity Balph as executrix the estate W. E. Moff in her and of Juliet individual ca-

deceased, firmly pacity, paper a sheet of which is. printed pasted form of lease. duly

The lease recorded Becorder’s office county, 11th'day Ohio, of Columbiana De- Company Kresge and the S. S. went into cember, 1929, premises beginning possession of the leased at the stated therein and have ever since been in the term *8 possession premises paying of the rentals and stipulated in said lease. litiga- stipulated parties

It is to this between by mucilage paper tion that the sheet attached the form which is written and the lease acknowledgments appear, was certain by parties, mucilage wit- fastened thereto before the signed were nesses and notaries and instrument, delivery by mucilage so fastened at time recording and of the lease.

Walter A. died Moff, Moff, one the sons day leaving intestate on the phine 1933, 8th Jose- June, Eaymond E. H. and Moff, Moff, only minor, as his next of kin and heirs at and on law, day Josephine or about the 12th E. Moff June, 1933, duly appointed acting, qualified, was and is still and as the administratrix of the estate of said Walter A. Harry Vogel duly ap- and one Moff, deceased, M. pointed, qualified acting guardian of still person property Eaymond H. aMoff, of said minor. Ealph

Juliet E. Moff, widow sole devisee of W. day Moff, December, on or about the 1st deceased, conveyed Company The B. 1932, sold and D. K. Block.(Juliet one-fourth interest the Commercial E. being part Moff at the time the owner of the one-half subject to;the premises, lease). of such Moff Moff Kate and Juliet E. each to take elected respective husbands, under the wills of their deceased by open by either election court conduct their questioned not action; least, at it is this case provisions that each such widow elected to take the respective for them in the will their husbands. remarry, widow of did not Moff, February 1932. died re-acknowledgment A of the lease was made on the original E. Moff sheet thereof Juliet and subscribed February notary under date of

Ill *9 stipulated parties It is between the the that time at filing simple of the of this action the fee title to the premises in described lease is as the follows: Company

The B. D. K. an has undivided one-fourth E. interest; Juliet Moff an undivided one-fourth in- Josephine

terest; R. Moff in- an undivided one-fourth Raymond terest; and H. Moff an one-fourth undivided proper parties plaintiff whom in interest, all of are this action. appeal proceeding

Since this to court this conveyances changing certain have been the title property, to said and substitutions have made of been parties question to conform no thereto, and is made in proceeding upon subject simple this the fee title premises subject which are the of this action. Upon the trial this action the Common Pleas re-acknowledged Court the lease was tendered plaintiffs Kresge Company, to S. S. which tender company. was refused Prior to the institution of the action in the Common Pleas Court the S. S. Kresge Company, writing, notified the owners premises fee title that it intended to vacate February liability terminate, its under 28, 1934, designated “purported what it lease,” recorded page county volume 36 of Columbiana Record of Leases. questions raised before this court the fol-

lowing :

(1) power, Did Moff have the under the will prem- Moff, deceased, to make a lease of the question fifty years? ises in (2) question Does the conform to the visions of Section General Code?

(3) appellees Are the entitled to lease re- have the according formed to the manifest of the intention parties ?

(4) appellant estopped question validity Is the of the lease? object great construing ascer- is to will,

“In is to this be testator, tain the intention of the gathered phraseology itself; and of the will from the necessary it is in order to at intention, arrive to seize will not do look upon the whole instrument. It into controlling give passage, an isolated recognized in the construction, effect. Rules of may be books, and resort had to, should adhered as it conclusive, cannot be decided cases. But these exactly expected any not two wills will be to be judgment court, After the sound alike. all, any given must be relied ascertain case, language meaning which he from the testator, employed.” Veach, Ohio, has Lessee Williams *10 in the construction of “It has a formula, become govern. that intention of the testator must wills, ascertained from course, This intention must, applied language instrument, sub- as surrounding ject circumstances. matter, and construing language of a will is “The rule any rigid regard other it instrument. less than is necessarily, technically, and, is to be viewed not, It sensibly grammatical accuracy, and but with strict * * * liberally, give intention. in order to effect to disposition language an is ex- In whatever intended pressed, disposition it not if the itself be unlawful, must follow the ascertained intent.” Brasher v. Marsh, 15 Ohio St.,

By Moff, Item of the deceased, Second will bequeathed gave, wife, to his devised and he residue remainder his Moff, rest, all of the and payment ex- his debts and funeral after the estate during penses, her lifetime, the same to be hers widow, his at the date her vided remained she remained of his re-marriage, all that estate death, or pass go A. children, Walter Moff his should Ralph if alike, share either share and W. leaving die children, such child or children to take the parent living. their share would have taken if By Item Third the will of Moff he directed that when his executors have settled his estate so far as his debts are from this concerned, time on his wife right, long have can to so as remains she dispose personal property, sell and of his real and using proceeds she to live and to assist his living. children, the same as he could do if By language granted in the will we find there is power dispose to the widow the to sell and of the tes- proceeds tator’s real estate and use the to live and to assist the children the same as the testator could living, power coupled do if and this with the life by interest in the real estate devised the will to the widow. enough

It conceded that the will is broad to au- thorize the widow sale real make a estate in question, appellant but it is claimed power granted to the widow this will does not au- fifty years, thorize the widow to execute the lease for appellant and we are cited counsel for to the case of Hayes, Rep., Breuer 10 Dec. L. B., W. authority position appellant. to sustain this syllabus From the in the last cited case is stated: power imply power “1. A naked sale not does to lease.”

In that case under the executors made á void lease power conveyed a naked of sale the reversion sub- ject to the lease. It *11 held “that the claim that was there power the two acts constitute a of lawful execution the the is, least, at so doubtful that absence of the que equity ought cestuis trust court not to force a of validity purchaser, dependent a title for its upon the deed of reversion.” the Hayes, supra,

The facts in Breuer v. no re-. spect similar to the facts in the case under considera- by supra, Hayes, to tion as this In Breuer v. court. power a naked the was of the real estate four-fifths any coupled power in the with interest of sale not under executors, and it held that the was executors, prem- right power, the make a lease of to had no such power coupled at we have a In the case bar, ises. power sale, of to the an in addition interest, with and, granted of Moff to the will there is power dispose of his real estate and widow the to personal proceeds property, using live the she if as same he could do and to his children the assist living. do liv- he could if “the words same grammatical ing” given con- their strict need not be interpreting ascertain so as to the will struction, but held will be of testator these words intention modify power disposition estate, real of provided proceeds, modifying as well as use intention is not in conflict with the this construction from the whole instrument. the testator as determined Looking language we find the will further of the widow that the directs that at the death testator pass to his chil- that remain” of his estate shall “all living, provided if in the will it is further dren, remarry if then a that should provision disposing part is made the estate at “left that time.” examining Hayes, supra,

In case Breuer v. opinion reference made Taft, J., to the case of Saltingstone, Rep. Eng. 1 Mod., v. Re- Liefe print, where made “A the will devise wife power dispose for life the estate to the chil- greater dren”; and wherein court held that the less. includes the Judge Speaking Saltingstone, case of Liefe says:

Taft supports plaintiff’s “We not think this case do power contention for several reasons. The under con- power coupled interest, with an sideration

115 ordinary is a material in that distinction con- this, may power materially struction of such a have to he carry as it was in the in modified, case order to cited, respect out the intention with to the en- the donor joyment Again, of the interest. a close examination language of the chancellor’s considering shows that what he was ‘dispose the effect was words of.’ of, He a cites case to show that those words have been justify necessity, held, under circumstances a says sale the fee and in then, effect, that if those justify they words will so a greater extreme measure a sale, principle will, justify that the includes the less, disposition lease, a is more a limited very thing saying the estate. This is a different from power power a that sell includes to lease, because greater ‘dispose the one is than the other. The term of’ is a wider term much than sale or in- lease, and them cludes both.” Hayes, supra,

So, we find that the case of Breuer v. authority holding “dispose that the of” words in used the will of deceased, constitute significance term of much wider than sale or lease, include them both. opinion

It is also noted that in the Taft, J., supra, Hayes, the case of v. Breuer attention is called que parties to the fact that the cestuis trust were the Saltingstone, supra, to the action of v. we Liefe parties having observe that all here an interest in question parties proceeding, real estate upholding validity question, and are quite plain so that it is and the for us to see record from.the disposition evidence power granted making widow under the will and was for this lease is the benefit of estate and persons for the of all benefit interested therein. O’Brien, In ease of 121 Mass., Wolff syllabus: held in the N. E., bequeathed prop- “A devised and testator all his erty power to his ‘for her natural life, wife sell mortgage property said if considers it neces- she sary,’ leaving the remainder her to his children estate death. The widow made a lease of certain real belonged to her that had and died while three husband, *13 years unexpired. of the term of were In the lease equity by against in the tenant under the lease suit enjoin from in- of the testator to them the children enjoyment terfering quiet property, it with his of the prop- power the of widow sell the was held that the erty power the to lease that accord- it, included and good against ingly the defendants, the lease was and injunction.” entitled to an the tenant was power granted that the to the widow It will be noted dispose Moff is to sell will and of in the real estate. S., Hill 132 Sumner,

In the case of v. U. Sup. Mr. Justice 284, 10 Ct., 42, Miller, L. Ed., 33 118, Supreme said: States, of the United Court of the ‘dispose of the words of’ or ‘sell,’ “The definition considered "with must be reference article, in this to ascertain mean contract, its remainder the ing.. Obviously ‘dispose’ word must have some the synonymous meaning not with and is contract, in the if such were its useless, It would be ‘sell.’ the word something mean more or some It must construction. In circumstances thing word ‘sell.’ the than the less something to mean more. it would seem case, to decided their briefs of counsel references attempting word are of to define that course cases very instance it must be taken each avail, little it is circumstances the in connection language of this court case of In the used. expression Phelps 380, ‘the 370, 101 U. Harris, S., v. ” signifies very dispose more than broad, is “to disposing Selling but one mode “to sell.” ” property.’ place great seemingly appellant reli for Counsel Crampton, Rutledge Ala., 150 upon v. case ance similarity no So., This case has opinion facts in In the case at bar. the court states: Phelps

“Our attention is called to case of Har- ris, there and authorities cited and considered in 101 prop- U. S. 25 Ed. it 370, L. wherein held, erly right dispose prop- so, to sell and erty gave right partition, proper and wherein a distinction is made between the pose’; ‘sell’ ‘dis- words meaning

but such cannot be the of the word ‘dispose’ in the case at words as bar, used synonymous, says the will of Bell are while it ‘sell for, dispose’ may says, of as she think best, further public private directing ‘either sale,’ at thus disposition limiting convey- method it to a (Italics ours.) ance.”

In the case at bar is no limitation there phrase dispose “sell and in the of” will of ‘‘ using than Moff, otherwise words she my to live I ceeds and to assist children same as *14 living.” could do if

In the case of United States v. Gratiot, U. S., 526, syllabus 10 L. the Ed., 573, as follows: ‘dispose public “The of’ the words used in the lands, Constitution of the United States, under the cannot, Supreme any of decisions the receive Court, other con- Congress power, struction than that the has in dis- its leasing cretion, to authorize the the lead mines public the in the the lands, territories of United States.” arriving meaning

In at the true intent and of this pertinent provided will it is to observe that the testator therein that at the death of his wife “all that remain my go pass, provided estate” shall etc., re-marriage therein that will and the I of his wife “then bequeath part her the undivided one-third my estate that at time and the balance” etc. Tak- left ing language in this connection with the fact that the “dispose of” “sell” and used both the words

testator the further in the of his will, third clause grant- disposition in the widow fact that ing question estate, the lease in is for the benefit residuary devisees, for as well as the benefit taking fact that the term and “dispose into consideration meaning general and more

of” has broader must further fact that it the word and the “sell,” than using purpose in had some be held that the testator “dispose and the further of,” the additional words coupled granted power to the widow is fact that the the lan- the further fact that with an interest, capable guage of the reasonable construction used grant to the same intended to his wife that the testator disposition power real estate as he “could over this living,” at conclusion that if have arrived we language used intendment of the testator surrounding the of all circumstances will view sufficiently to have authorized the mak- same is broad question. ing of the lease appel- argument of It in oral counsel is said ques- find if the court should that the will lant that tion in we deem granted power to the widow to make the lease finally question dispose case, would of this but that pre- proper further refer situation surrounding by other facts circumstances sented In of the lease. this connection we first the execution stipulated parties that it is between the observe expenses Henry Moff have and funeral the debts power paid, that there is no further and it follows been sell or Moff, deceased, of the executors payment dispose real estate after debts of his expenses. that, It therefore follows and funeral any two sons of the widow and the event, only per- were the father, of whom survived all *15 long real estate so as widow interested sons Upon Henry Moff lived. of the sons and both Ealph E. Moff, Juliet Moff, W. death Ralph Moff the interest W. succeeded to all Ralph soMoff, virtue of the will W. real estate of the execution hold that at the time that we find and only question persons who could of the lease any right, possibly in the title interest have had A. Moff were Kate Walter and real estate leased concededly question E. Moff. The lease was Juliet signed acknowledged upon properly the same sheet and paper by Moff. Moff and As of by Walter A. shown part is of the record which contract,

the written clearly parties in this it was intention case, years fifty granted that a lease for be S.S. Krésge Kresge Company. All that the S. 8. Com- reasonably pany can demand a lease which shall peaceable enjoyment premises tect them in their during term therein. acknowledgment E. Moff was Juliet firmly paper had attached

sheet of been body mucilage to the main and instrument, firmly stipulated was at the time that it so attached accepted and executed, delivered, the instrument subsequently E. Moff has acknowl- recorded. Juliet acknowledgment edged thereof her the execution and body forth on the main of the instrument has been set again and lessee, lease tendered and the brought re-acknowledged into lease was the trial said all-these cir- tendered to lessee. Under court and finding lease of this that the it is the court cumstances to conform with the is reformed so as be and should parties when the same thereto, all the intent of real modi- such as so lease, and and delivered, was executed good and sufficient is held be a corrected, fied and legally thereof is valid and the full term lease for sought year convey fifty term be sufficient binding conveyed thereby, is a valid parties title, their successors in thereto and to all against appellees judgment for the entered *16 prayed appellant plaintiffs’ petition, for costs.

It that clerk is further ordered this court certify this court to the recorder this county herein, entered and that the judgment and decree same be entered recorder on the of the rec- margin such et seq., ord in volume 34, page county, Ohio, Records of Columbiana Lease court copy journal entry showing be recorded in hereby and decree ordered judgment of Columbiana entirety its in the Recorder’s Office Ohio. county,

Decree accordingly. JJ., Roberts, Carter concur.

Tax Commission of Ohio et Com al. v. Surface Corp.

bustion (Decided February 10, 1936.)