LEX I JUS 16 l8s VIS IVOX fe l?3 PROFESSOR KAUPER, (J. OF

LEXI JUS
16l8s
VISIVOX
fe l?3
COLLEGE OF LAW
Ohio Northern University Bulletin
Vol 54-No. 10
Two New Professors
ChosenBy June 30
Mr. George D. Brabson of Findlay, Ohio,
and Mr. John P. Finan of New York City
will join the faculty of the College of Law
this coming year.
Mr. Brabson will become a full time member as a Professor of Law after serving as
a part time Lecturer for one course last year'
He will teach the taxation courses and also
be in charge of the Legal Writing course.
He is a graduate of the University of Tennessee and has his LL.B. from Yale' He
holds a Master of Arts degree from George
Washington.
Mr. Brabson began the practice of law in
Tennessee. He then joined the Internal Revenue Department of the Federal Government,
and comes to us after having served as a tax
attorney in the legal department of Marathon
Oil Company. He has written many articles
in the field of taxation and is presently engaged in writing a book on Estate and Gift
Tax.
Mr. John P. Finan of New York City will
join the faculty next year as an Assistant
Professor. He will be teaching the courses
in Conflict of Laws, Commercial Transactions,
Business Associations, and Personal Property.
Mr. Finan received his Bachelor of Arts
from Fordham and was graduated from the
Law School of Columbia University in 1961.
He was active in moot court work and was
selected to argue in the Jerome Michael
Honor Jury Trial.
He is a member of the New York bar and
practiced law with the Wall Street firm of
Hawkins, Delafield and Wood for a year. He
has spent the past year studying at Harvard
Business School and is working during the
summer at the firm mentioned above.
ACCREDITATION
Spring Quarter-1963
KAUPER,(J. OF'MICHIGAN
PROFESSOR
ADDRESSESLAW DAY GATHERING
Guests at the annual Law Day banquet
on the Northern Campus, held May 1, heard
and professor of
the distinguished writer
Constitutional Law, Paul Kauper of the
University of Michigan College of Law, warn
of the basic challenges confronting the Rule
of Law in the contemporary era.
Characteri2ing the Rule of Law as that
concept which includes the elements of order, equality and restraint on the law makers,
Kauper emphasized that the Rule of Law
above all serves to maintain those basic values which comprise our society.
The challenges to the Rule of Law demonstrate themselves in many ways. The first is
the direct threat to the authority of the Law
itself. Kauper pointed to the current racial
crisis in Alabama and Mississippi and pointed
out that the Governor of Mississippi directly
threatened the concept in his abortive conduct during the crisis. Kauper admonished
that unless the oppressed racial minorities
are able to advance themselves from a second
class citizen position through the legal machinery, then forces which are at work may
erupt to serve as a severe set-back for the
Rule of Law.
The second challenge Kauper characterized
was the rise and development of the power
complexes. He pointed to the industrialmilitary complex where great decisions affecting the lives of many people are made
outside the Rule of Law. He also warned of
the huge reservoirs of power residing in the
LA
TWO CONSTITUTIONA
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labor unions. Kauper noted that the International Typesetters Union, by stopping all
newspapers in New York, did what the federal government would not dare to do.
Professor Kauper assailed the ever increasing expansion of federal governmental
power as a challenge to the concept of the
One of the bastians of
Rule of Law.
strength inherent in the Rule of Law, Kauper
continued, was the dispersion and diffusion
of power. He looked with disfavor on the
trend of local and state governments to look
CONTINUED
At the annual meeting of the League of
Ohio Law Schools in Columbus on May 18,
the College of Law retained its membership
in and continued its accreditation by the
League of Ohio Law Schools.
Mr. Shelden Elliott had inspected the school
last January as a part of the League's biannual examination of schools. He and Mr.
Milton Green, both of New York University
Law School, visited all of the law schools in
Ohio fcr this purpose.
Mr. Ellioti found that the College of Law
at Ohio Northern University is "in full compliance with the standards of the American
Bar Asscciation and the League of Ohio Law
Schools." Mr. Elliott also pointed out in his
report that our expanding library is straining
its facilities and that it is necessary to provide
for more adequate space for books. There is
also a need for work room and for student
facilities, such as lockers and a lounge.
D-eon
Groduoting Seniors, from left fo righl, fronl row, Borney Lepovelsky, Brion Hoyes, George Economus,
Elliotl,
Eugene N. Hqnson, Birney Roberts, Brqin Moher. Cosimii Adulewicz, Jim Fisher. Second row, John
lll,
Wiiliqm Pelerson,John Pincuro, Chorles Fess, George Finnen, C. Nevsdo Johnson, Jr., Joseph Storrilt
Theodore Moceiko, Jr., John Jeisel lll, ond Somuel Konter.
Page 2
THREE FACULTY MEMBERS
ACCEPT NEW ASSIGNMENTS
Three faculty members associated with the
Law School will leave this summer to assume
teaching positions reaching from Georgia to
South Dakota.
Profesors Samuel M. Fetters, Gerald Kock,
and James Munro will assume new positions
at the College of Law at the University of
Arkansas in Fayetteville, at Emory College
of Law in Atlanta, Ga., and at the College of
Law of the University of South Dakota in
Vermillion, respectively.
With Northern since 1957, Fetters was appointed associate professor in 1959 and assistant Dean. Courses taught included Corporations, Business Associations, Legal Drafting,
Personal Property, Real Property, Sales, Domestic Relations and Trusts.
In addition to the academic curricuJ.um,
Fetter-s was president of the American Association of University professors and was also
president of the Faculty CIub. Other professional activities included lectures to the
Allen County Bar Association. In April 1962
he lectured on the "Irresistable Impulse
Test" at Northern's Insanity Institute and in
the fall of 1963 was a guest lecturer at a
Criminal Procedure course at Toledo University. From 1959 to 1962, Fetters has acted
in a consulting capacity at the Lima State
Hospital, Ohio's hospital for the criminally
insane. Recently he made suggestions {or
jury instructions concerning criminal insanity and related matters.
Associated with Northern since 1960, Kock
has taught Jurisprudence, Commercial Transactions, Jurisdiction and Judgments, Pleading
and Joinder, Trial and Appeals, International
Law, Creditors Rights and Negotiable Instruments.
Related activities, by Kock, have included
being an active member of the College of
Law's library committee and a member of
the University Student Activity Council. He
was also a member of the Publications Board,
a sub-committee of the University Activity
Council.
In conjunction with Fetters, Kock conducted lectures for the Allen County Bar
Commercial
Association on the IJniform
Code. In June 1962, Kock discussed the Uniform Commercial Code with the Hardin
County Bar Association.
Coming to Ohio Northern in 1958, Munro
has taught Legal History, Conflict of Laws,
Business Associations, Legal Writing, Estate
and Gift Tax, and Estate Planning seminar,
Trusts and Wills.
Fetters received his LLB (cum laude) from
De Paul University in 1954 and three years
Iater he obtained an LLM at the University
of lllinois. Kock received his JD degree in
1958 from the University of Chicago and in
1961 earned his LLM degree at New York
University. Before coming to Northern Kock
had been associate in the Legal Writing program at Indiana University. Munro received
his BA degree from YaIe and his JD from
Northwestern School of Law in 1935.
THE WRIT
JUNIOR BAR STARTS
YEAR OFF'"PROFITABLY"
Junior Bar is anticipating a profitable year
with their newly elected officers: Don Beran,
President; Pat Alien, Vice President; Sofron
Nedilsky, Treasurer; Dave Patterson, Secretary; and Miss Ann Tudor, Parliamentarian.
In addition to retaining some of the past
activities allocated to the organization, new
plans are in the making for 1963-64. Some
of the high-lights include: 1) a picnic for
the new students; 2) monthly speeches to
be given kry some of the outstanding attorneys
and physicians of the surrounding communities and by a psychiatrist on the stafi of
Lima State Hospital; 3) participation in a
student recruitment program in conjunction
with the faculty which will entail visits to
other campuses; and 4) production of a new
film for the Senior Practice Court'
President Beran and Treasurer Nedilsky'
represented the school at the American Law
Student Association Sixth Circuit Conference
held April 26-27 on the campus of the University of Tennessee, Knoxville.
The Annual Barristers' BaIl was held April
6 at the Springbrook Country Club in Lima'
Many perspective barristers and their lovely
ladies enjoyed the danceable music of Dave
Melle Quartette, a group from BGSIJ, and,
as always, stimulating conversations with
their classmates. It was a highly successful
afiair. We were pleased to have in attendance
Mrs. Jay Taggart, Mr. and Mrs. Dan Guy,
and Dean Hanson.
THE 1963 SPRING BAR RESULTS
Bar results for spring of 1963 were announced and Ohio Northern Law graduates
passed 9 of 12 in Ohio while four passed the
Michigan bar and one passed the bar examination in Pennsylvania'
Those who passed the Ohio bar were:
James Bachman, Charles Del Bene, Norman
Holt, Frank Leyshon, Thomas Middleton, Nathan Miller, Roger Wadsworth, Walker Watkins, and Peter Vandervoort.
Those passing the Michigan Bar Examination were: John Hughes, Thomas Middleton,
Roger Wadsworth, and Peter Vandervoort.
Passing the Pennsylvania Bar examination
was Vincent Morrocco.
Of the 32 members of the class of 1962, 29
have now been admitted to the bar'
LAIY/ V/IVES RECEIVE DEGREES
Although 17 seniors received their degrees
at commencement exercises this June, their
wives had aiready received P'H.T. (Putting
Hubby Through) degrees on April 25th. The
diplomas were actually signed by President
Mclntosh, Dean Hanson and of course their
appreciative husbands.
Also, the first ladies of the Law School
elected to office the following: Mrs. Carol
Moyer (President), Mrs. Mary Allen (Secretary), Mrs. Sue Bender (Treasurer), and Mrs.
Dave White (Activties Chairman).
The gal's last social function for this academic year was a family picnic which was
held at Dean Hanson's home on May 12th.
Spring Quarter-1963
Forty-Five Former Graduates
,4.ttendAnnual Law Institute
At the annual Law Institute, {eaturing Wills
and Probate Problems, were many former
graduates of the Law School. By class they
are as follows; the Honolable G. W. Marriot
'16, E. B. Wetherill '20,
'13,
J. L.
J. McElroy
'23,
'2\, J. L. Reinheimer
Pickering
C.
'25, R. Finley '27, M. M. Levey
Schwemmer
'28,
'
3
0
,
'28, J.
E. V.
W. P. Reese
C. Arter
'34.
'33,
Judge J. Faust
Spitler
Others who attended the institute were:
'35, Mrs. S. B. Duncan '36,
Dr. C. Meyers
'39,
'37, A.
R. H. GorJ. Bowers
F..R. Spain
'40, W. C. Foster '41, G. W. Depler '42,
don
'
4
8
,
G. G. Oxley
J. T. Rittenour'47, J. I. Hunt
'48, Mrs. B. D. Rizor '48, G. B. Weller '48,
'49, L. C. Schoenberger '49.
G. J. Crites
'50, D.
The remaining were: B. W. Pettit
'51, F. C. Short '52, E. F. Clark '53,
R. Waitz
'53,
'53,
C. L. HuntsJ. S. Stuckey
J. H. Rieck
'54, P. Kavanaugh '54, H. P. Mittlekamp
man
'54, H. B. McMullen '57, J. A. Metzner '57,
'58, W. D. Dauterman '59, D.
R. W. Phillips
'60, J. D. Noble '61, J. W. Bachman
C. Mason
'62.
R. H. Whitney.
Three of the graduates who attended the
institute have sons who are presently attending the Law Schooi. They are: John L. Rein'23 and Frank Reinheimer, E. V.
heimer
'33 and Daniel Spitler, and Richard E.
Spitler
Hole and Richard E. Hole, Jr.
Frofessor Kauper (cont.)
to Washington for continued aid. It is delusion, Kauper said, to think that the federal
goverrlment can spend money without obtaining control.
A cause of the expanding federal control
lies in the failure of the states to improve
their own administration and efiectiveness;
and noted that few states could not solve
their problems by taxing themselves. "'We
have gone blindly into the problem of federal aid," Kauper continued, "and it is futile,
even silly to decry federal expansion when
we on the local level, by relinquishing responsibility, create the need for federal
spending."
"The uncontrolled discretion in the hands
of any one man," Kauper stated, "is a subtle
challenge to the Rule of Law. He noted this
because of the concentration of power in the
executive arm of the federal government'
Moving into the realm of international politics, Kauper noted that the Rule of Law is
presently more wishful thinking than a reality. He frankly stated that he thought the
United Nations was not equipped in its
present form to make decisions which should
bind this nation.
To the law student, Kauper addressed the
hope that they would catch sight of their
role as the future custodians of the Rule of
Law. He stated that as such they would be
in a position to shape it, modify it, challenge
it, but an orderly way. Ife encouraged them
to see the opportunity to use their capacity
for analysis through disinterested judgments
in the area of the community problems and
to be a sobering influence on the public
thinking. A final charge was to pursue the
study and practice of Law with the sense of
honor and devotion which it deserves.
Spring Quarter-1963
THE WRIT
Page 3
WrllsE Probste
Prohlems,
Topic
0t Annusl
LswInstitute
The annual institute brought three well
known members of the bench and bar, to discuss and lecture on Wills and Probate Problems on April 19.
Judge Frank J. Merrick
of the Probate
Court of Cuyahoga county delivered two addresses, the first entitled "Devices to Escape
Administration"
and the second, "Problems
in Drafting Wills." Russell M. Mack, Chief
of the Inheritance Tax Division of the Ohio
Department of Taxation, spoke on the topic,
"Ohio Inheritance Tax Problems." and the
late Judge Vincent Zurz, a graduate of the
Law School, and Probate Judge in Summit
County lectured on the "Problems of Administration of Estates."
Judge Merrick, who is also co-author of
Merrick-Rippner
"Ohio Probate Law," noted;
five methods of passing property upon death,
without administration. which would completely disinherit the spouse even under his,
or her, election by statute.
The first of these methods is the inter-vivos
trust. In the famous Smyth case, the Suprerire
Court of Ohio reversed itself and denied the
surviving spouse the right to elect against
an inter-vivos trust. Judge Merrick mentioned that an amendment added to the revised code after the Smyth case was decided
might change the law.
The second method of passing property
without administration is the joint and survivorship accounts which the courts upheld
on the theory that they are binding contracts
made during the lifetime of the parties and
that upon death, title passes to the survivors
under the contract and is not an asset of the
probate estate, but can be subject to inheritance taxes.
Judge Merrick said that prior to July 25,
1961, deposits payable on death were treated
as testamentary in character and ineftectual
to pass title outside of the estate. However,
R. C. sec 2737.7L which went into efiect
July 25, 1961 provides approval of such deposits and authorizes payment to the designated person upon the death of the depositor.
There is now a test case on this pending in
the Court of Appeals of Franklin County to
determine the validity of this statute.
Partnership contracts can be entered into
without immediate consideration which propartner receive a
vide that the surviving
decedent partner's share without including it
in his probate estate. The surviving spouse
cannot invade this share.
J u d g e s - S e o t e d f r o m l e f t t o r i g h l i s R u s s e l lM o c k , C h i e f o f t h e I n h e r i t o n c e T o x D i v i s i o n o f D e p o r t m e n l o f
Toxolion; Judge Fronk Merrick of the Probole Court of Cuyohogc County, Judge Cloude Pettit of the Hordin
Counly Probole Courl; ond slonding, is Judge 5, Foust of the Miomi Counly Probote Court, Judge R. Finley
of the Tuscorowos Counly Probole Court, Judge G. Weller of lhe Morrow Counly Probote Courl ond Judge
E, Ruzzo of the Morion County Probote Courl.
Russell Mack of the Ohio Department of
Taxation, speaking on the subject of "Ohio
Inheritance Tax Problems," expressed a concern over the high cost of administration and
mentioned the tax consequences of certain
non-probate assets such as the powers of appointment and joint and survivorship property. He cited a number of cases and statutes
that apply to these topics. By throwing property back into the estate, the debts on it can
be paid from he estate which might result in
a lower tax.
The burden of proof on deposits payable
on death is the transferee. Pension, retirement and other employee benefit plans were
covered and Mack pointed out that pension
plans are taxed at the date of death regardless of control.
Resuming in the afternoon, Judge Merrick
returned to the speaker's stand and spoke
on "Problems in Drafting Wills." He urged
the members of the audience to use simplicity
and caution in drafting a will. The testator
should be specifically identified by his name
and by variations and aliases.
It is often desirable, continued Judge Merrick,, to provide for a trustee who is not a
parent if the testator wishes to make gifis
to minors and parents may be improvident.
An executor and successor executor should
be appointed and where the executor has
l.il
t1
;i
*l
Allorneys lislen to Judge Merrick ot Wills & Probqte Insfitute,
l
utmost confidence in his executor, provision
for dispensing of bond should be made. Adequate powers of sale and title should be
given to the executor. Be sure only original
will is executed and that each page of the
original will is signed by the testator. The
original will should be placed in testator's
safe deposit box or deposited in the Probate
Court for safekeeping. Continuance of the
business and provision for waiving of inventory and appraisement of partnership assets
and disposition of same should be mentioned.
The judge said that where a will provides
for a distribution of the estate other than in
the manner in which it would pass under the
laws of interstate succession, an action to
contest the will is invited and all precautions
should be followed which will help defeat
the successful setting aside of the will. The
amount given to a beneficiary should be
suffi.cient in view of the size of the estate to
discourage the possible contest. Firm reasons
for disinheritance for partial, or total disinheritance of heirs-at-law should be given.
Caution should be taken on gifts to charities
because of the "charity begins at home" idea.
The judge pointed out that the choice of
witnesses is very important.
The witnesses
should be younger than the testator, but well
known to him and the family doctor and
religious leader should be used whenever
possible. The attorney who drafted the will
should always be a witness and a minimum
of three witnesses must be used. II the
attorney is to act as an executor, use a minimum of four.
Last speaker of the day was Judge Vincent
Zurz oI the Probate court of Summit County.
He spoke on the subject of "Problems in
Administration of Estates."
The Judge first covered the appointment
and duties of the administrator
and then
moved into some of the problems that an
administrator
might
Inventory
encounter.
and appraisement of the estate were covered
and the appraisement of "good will." A formula for determining the value of corporate
stock was cited. The "Blockage Rule," which
forbids dumping stock on the open market,
does not apply in Ohio, the Judge emphasized.
(continued page 4)
THE WRIT
Page 4
Spring Quarter-1963
,dpplications
First Year Moot
Court Mermories
scholars drew into two large groups-the
By Andrew Fishrnan
army of the Appellee and the army of the
As late as the first week of May, the memAppellant (to be referred to as the House of
bers of the ONU freshman law class were
York and the House of Lancaster respecknown as a friendly group. Often its memtively). Each posted guards equipped with
bers could be found amicably debating some highly technical warning devices which could
be used if one of the enemy tried to use a
legal principle either in the halls of the law
school or else at one of the sundry campus b o o k .
A truce was called so that the opposing
hangouts. But then, like the Black Plague,
camps might have time to shape their battle
which centuries ago devastated the European
plans into something more concrete. Both
continent, a nefarious and destructive force
groups clustered around those members who
interposed its acrimonious head-Moot Courtl
had some military experience. Kitchen utenIt all began rather innocently. A particular
set cf oppcsing counsels would meet each sils and anything else evailable were to be
used as weapons.
other in the library. Each was doing his reIt was three o'clock in the morning, the
search, each for his own side of his case.
town of Ada was pleasantly secu.re in the
Re:narks, which at first were jocular in their
denreanor, were soon taken more seriously. arms of Morpheus; but one could sense the
excitement in the air. In two obscure, clanResentment crept slowly into the innermost
recesses of their subconscious. All too soon, destine garrets activity raged at a fever
h o w e v e r , t h e s e l a t e n t f e e l i n g s m a n i f e s t e d pitch. Then between the two extremitiesthe tumult and the serenity-could be heard
themselves in the belraviour patterns of the
the screeching sound of a siren. SOMEONE
students. Again, it began in a light vein;
s o m e o n e w o u l d v o l u n t e e r a n o t h e r t o r e c i t e a HAD TRIPPED THE ALARM.
Without hesitation, the members of the two
case and a few appreciative snickers could
b e h e a r d . S o o n t h e s t u d e n t s m a d e m o r e houses propelled themselves toward the scene
of battle. The clash of knives could be heard
overt attempts to embarrass or ridicule their
coupled with an occasional thud. The slaughrespective opposing counsellors. An attorney
ter was unmerciful, but from the very onset
for the appellant accused an opponent of not
it was very obvious that the House of Lanbeing prepared in classl This, however, was
caster had the superior forces. One of the
a mere foreshadowing of the atrocities which
valiant warriors of the House of York Iell
were to follow.
lifeless against the bookshelves-their deaths,
Soon the students would come back to the
though honorable, were in a losing cause.
library from a break and would find their
research notes missing. This engendered a Then, just as the day seemed lost, the courhigher degree of animosity than ever before. ageous leader of the Yorkists, nearly dead
from his many wounds, darted out of their
In a state of hot blood, one of the student
library and then back. He had brought with
lawyers ripped up the research notes of
him five gallons of gasoline. With his life all
his adversary to shreds and left them
but spent, he dauntlessly and unrelentingly
strewn upon the floor. The ofiended party,
pushed himself onward. When all of the prebeing a more lucid fellow, systematically
cious fluid was properly distributed, laying
looked up every case which supported the
prostrate and with a last superhuman effort,
contention of the other side and simply
the hero struck a match and then, having
extricated the volumes from their rightful
done his duty, died.
positions on the shelves and hid them.
The holocaust which followed was of unThis type of activity continued until the
paralleled proportions. The entire countrylibrary was a compiete shambles. It now
being nearly impcssible to do any research, side was but a scarred ash. Moot Court, that
t h e s t u d e n t s r e a l i z e d t h a t t h e k e y t o s u c c e s s devastating, propelling force of extirpation
was the ccntrol of the library. Qu.ickly the t held illimitable dominion over all.
THE OHIO NORTHERN UNIVERSITY
Ohio Northern University
CoIIege of Law
Ada, Ohio
Published monthly by Ohio Northern
University, Ada, Ohio
Second Class Postage Paid at Ada, Ohio
No.lO
Vol. 54
BULLETIN
on
the Increase
As of June 15, there have been sixty-three
applications for admission to the College of
Law for the fall of 1963. This is an increase
over the number of applications received at
different
this time last year. Twenty-four
colleges are represented by the various applicants, with fourteen of them coming frorn
Ohio Northern University.
Annual
Law
(cont.)
Institute
On the subject of the rights of the surviving spouse and minors the speaker cited a
case in which he was overruled. The issue of
the case was whether a not Iegally adopted
child could inherit in Ohio. The Ohio Supreme Court in overruling Judge Zurz held
that Ohio had only one way to adopt, and
that was by a legal decree. Another view
holds that a not-legally adopted child can
inherit.
The last part of his speech was devoted to
the "HaIf and Half Statutes" and the effect
of oral statements on executed and written
wills. In closing the judge noted that there
is a presumption of death after seven years
absence and emphasized that it was only a
presumption and the date of decree of death
was the important item and not the date of
the end of the seven years.
Presiding over the Institute was Judge
Claude W. Pettit of the Hardin County Probate Court, Dean Emeritus, College of Law,
at Ohio Northern. Both the Hardin County
Bar Association and the College of Law
sponsored the institute.
,Qr@'A,-a,A'AA
STAFF
WRIT
Editor
Bob Dix
- , Lay Out Editor
Bob Steiskal .. .Copy Boy
Dean Waltman ,-----.,---Ted Sawyer
Ann Tudor
Andy Fishman
Henry Shaw
Bob Gray
Lou Zipkin
4>a.4h421471
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s E c o N Dc t A s s
POSTAGEPAID
AT ADA, OHIO