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    CONSTRUCTION OF A WILL CREATING A TRUST.
    [Circuit Count of Hamilton County.]
    Harriet C. Robbins et al v. Amor Smith, Jr., Administrator, et al.

    Decided, May, 1903.

      Wills — Interpretation of, where Ambiguity Exists — Executory Trust—Will not be Terminated at the Desire of Parties Presently Interested — Not a Marital Trust Merely — When Equity. Continues a Trust — Repugnancy—Want of Technical Words — Or of a Trustee —Intention of Testator.

    1. A will is to be interpreted by its express provisions, and when no • ambiguity exists in such express provisions, the mere fact that we can not understand why the testator so provided, or such provision is contrary to what we might have expected, does not justify putting a construction on said will, different from the plain import of the words therein used.
    2. The will of Bdiward Harwood provided that two-thirds of his estate should be equally apportioned amongst his children,, but should not be paid over to them, but be safely invested for their behoof;, and the annual income arising to each child be subject.-to her control, whether married or unmarried, and in no instance shoqld. the husband of any such child have any power or control, over the principal or interest of such share; nevertheless, each.tq,have power and authority to will and devise her portion as she. shall see fit. In case of either dying without leaving a will her portion to be equally divided between her children who may survive her, or if she have no children surviving her, then the said portion to be paid to the testator’s children who may survive her, share and share alike. One of the three children is now dead. Held:

    3. The trusts created therein and the provisions creating them are not mutually repugnant, and where .the objects of such trusts are. still possible and have not been fully accomplished, the same will not be terminated by decree in equity, notwithstanding the desire and contract of those presently interested.
    4. Equity will not let a trust fail for want of technical words in its creation or for want of a trustee.

      5. Under said will the children took but an estate for life in the body of the 'estate.
    6. In the event of any of said children dying intestate and failing to 'exercise the power given in the father’s will, her share passes in accordance with the provisions of the father’s will.
    7. The reference to husbands did not create a marital trust merely.
    8. Equity never continues a trust for the benefit of the trustee, but inasmuch as the trusts herein can not sooner be deemed completely fulfilled, the trust as to each child will be continued during her life.
    Jelke, J.; Gieeen, J., and Swing, J., concur.
    Tbe last will and testament of Edward Harwood is as follows r

      “In the name of God, Amen: I, Edward Harwood, of the city of Cincinnati, Hamilton county, state of Ohio, being in moderate health and of sound mind and memory, do make and declare this my last will and testament, hereby revoking and making null and void all wills and testaments by me heretofore made:
    “First. I give, devise and bequeath to my dear wife, Julia Anne Harwood, the third part of all my estate of every kind,, whether consisting of real estate, moneys, debts, merchandise, furniture, or of whatever other description and character said property may be.
    “Second. The remaining two-thirds of my 'estate shall be equally apportioned amongst my children, but shall not be paid over to them, but shall be safely invested for their behoof; and the annual income arising to each child shall be subject to her control, whether married or unmarried,' and in no instance shall the husband of any such child have any power or control over the principal or interest of such share; nevertheless, each of my children shall have full power and authority to will and devise her portion of said inheritance in such manner as she shall see fit.
    “Third. In case either of my children dying without leaving a will, then her portion of said inheritance shall be equally divided between her children who may survive her, or if she have no children surviving her, then-the said portion shall be paid to my children who may survive her, share and share alike.
    “Fourth. I do hereby appoint my said wife, Julia Anne Harwood, executrix of this my last will and testament, so long as she shall remain unmarried.
    “Fifth. I do hereby appoint William Henry Brisbane, of Arena, Wisconsin, and Frederick Dallas, of Cincinnati, to be the advisors of my said wife, hereby requiring her to obtain their consent and co-operation as to the general management of my estate.
    “Sixth. In the event of the marriage or death or refusal or disability of my said wife to act as executrix, I hereby appoint the said William Henry Brisbane executor of this my last will and testament; and in the event of the death or refusal to act of the said William Henry Brisbane, I do hereby appoint the said Frederick Dallas executor of this my last will and testament.
    “In witness whereof, I have hereunto set my hand and- seal at Cincinnati aforesaid this twenty-fourth day of August, A. D. eighteen hundred and sixty-seven.
    “Edward Harwood (L. S.)
    “The above instrument on one sheet of legal cap paper was now here subscribed by Edward Harwood, the testator, in the presence of each of us, and was at the same time declared by him to be his last will and testament, and we as witnesses sign our names hereto as witnesses.
    .“J. F. Larkin,
    • “J. W. Weakley, Jr.
    ! ‘ Codicil.
    “I do hereby nominate, constitute and appoint my much esteemed friend, David Munroe Marsh, my executor to assist my dear wife in the management of my estate and the execution of my last will and testament, and in case of her decease or disability for him to continue the management and execution of the same.
    “And I do hereby declare this to be a codicil to my last will and testament, which bears date the twenty-fourth day of August, eighteen hundred and sixty-seven (1867). And I do hereby direct that it shall be received and considered as part of my said will.
    “Witness my hand and seal, dated at Cincinnati, this twenty-eighth day of April, eighteen hundred and seventy-four.
    “Edward Harwood (L. S.)
    ‘ ‘ Codicil.
    “I, Edward Harwood, the within named testator, do hereby make and publish this codicil to my last will and testament bearing date the twenty-fourth day of August, A. D. 1874, in the manner following, to-wit:
    “Whereas, I hold a certain note of hand for the sum of six thousand three hundred and fifty-seven 96-100 ($6,357.96) dollars made by John W. Langley, dated January 1st, 1872, and-payable one day after date, now I do hereby release and discharge the said Langley, his heirs and legal representatives, from the payment of any sums of money due and owing me at the date of my death, or that may become due after my death, for and on account of interest due on said note, and I direct my executors to credit all moneys heretofore or that may hereafter be paid by the said Langley to the liquidation of the principal of said note, and when the sum of $6,557.96 has been paid, I direct the note to be delivered to said Langley, and I further request and instruct my executors not to press or harass the said Langley for the payment of said note, trusting, however, that the said Langley, should he ever be able, will promptly pay all- sums then unpaid upon said note on account of interest, which payment shall be left to his sense of honor and to his individual judgment.
    “In witness whereof, I have to this codicil annexed to my said will set my hand and seal the eighth day of May, A. D. 1874, to the end that the same may be annexed to and made a part of my last will and testament.
    “Edward Harwood (Seal.)
    “I, Edward Harwood, having on fourth day of October, 1875, duly made and executed my last will'and testament therein constituting Julia Harwood, my then wife, the executrix therein, and my said wife having since the date thereof departed this life, leaving me her surviving, therefore, being still of sound mind, do hereby substitute in place of my said deceased wife to be the executor of my last will and test-ament my son-in-law, Maynard French, and do hereby declare it to be my will and intent that as in said will declared in respect to my said wife that he be not required to give bond or surety as such executor, the same being dispensed with, and I do hereby declare this to be part of my said last will and testament ■ and to take effect as such.
    “In witness whereof, I sign and hereby execute these presents.
    “E. Harwood (Seal.)”

       Affirmed by the Supreme Couri., Tuesday, February 28, 1905.

   We are required to construe this will in order to determine what estates Harriet C. Robbins, Gertrude Gordon and Adaline French, who were Edward Harwood’s daughters and only children and heirs at law, took thereunder.

The ability, learning and research of counsel on both sides of this case command our admiration and respect. In. the oral discussion some one said that the court below had not given adequate consideration to the canons of construction, the principles of interpretation and rules of law to which its attention had been called, but had brushed them, all aside, saying that this will was too clear for argument. In sympathy with and in defense of the court below, we want to say that in a case of this kind there is nothing so mind-satisfying as a natural, unaided first impression. After reading the long, scholarly briefs of counsel and examining the many authorities cited, after looking at different parts of the will in the light of almost every known rule of construction, the mind is grateful to have a clear first impression to hark back to. The value of these natural impressions in the interpretation of documents, and especially of a will not drawn by a lawyer, is shown in an article on “The Theory of Legal Interpretation,” by Professor Oliver Wendell Holmes, now U. S. Justice, in Volume 12, page 417, of The Harvard Law Review:

‘ ‘ Thereupon we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used, and it is to the end of answering this last question that we let in evidence as to what the circumstances were. * * * So in the case of a will. It is true that the testator is a despot, within limits, over his property, but he is required by statute to express his commands in writing, and that means that his words must be sufficient for the purpose when taken in the sense in which they would be used by the normal speaker of English under his circumstances. ’ ’

Let us, then, on this basis and before examining the cases, and without having recourse to rules, see what impression we get from the will itself.

“The remaining two-thirds of my estate shall be equally apportioned amongst my children.” “Apportioned,” that is, divided, cut up into portions, parts' or shares, and each part or share to be set off to a particular child, and if the will stopped there we would say given over absolutely to such child; but the will immediately puts a stop to this latter idea by saying, “but shall not be paid over to them.”

After the apportionment into shares, if these shares are not to be paid over to the children, what is to become of the shares ? This forbidding their payment to the children is a negative provision and does not tell where these shares are to remain or where to go.

“But shall be safely invested for their behoof.” This tells what use is to be made of the shares and what is-to be done with them, but does not tell where the title of the shares is to rest or who is to safely invest them. The word “behoof” means benefit or use; and here we get the first suggestion of a trust. A trust is not lightly to be engrafted upon an estate, and yet if the testator intended to create a trust, although he has failed to do so in express terms and neglected to name a trustee as such, equity will not let a trust fail for want of a trustee. With this suggestion we look further in the will to see if we can find that testator had anybody in mind who should act as trustee. In item fourth he names his wife, Julia Anne Harwood, executrix, so long as she shall remain unmarried. Here is an intimation that the duties to be performed by his widow would in all probability be of longer duration than tbe mere administration upon the estate. That testator had something of this kind in mind is further manifested by item fifth: “I do hereby appoint William Henry Brisbane, of Arena, Wisconsin, and Frederick Dallas, of Cincinnati, to be the advisors of my said wife, hereby requiring her to obtain their consent and co-operation as to the general management of my estate.” His widow was to have more to do than simply administer the estate according to law and subject to the direction of the probate court; she was to have the management of the estate in such a manner as to need the consent and co-operation of his two friends. This idea persists and is made more obvious in the first codicil where he speaks of the “management of my estate” and the “execution of my last will and testament. ’ ’ ■

Whether testator had or not in his mind a trust in any technical sense, it seems manifest that whatever holding or withholding there was to be of the shares so apportioned, was to be by the same person appointed executrix or executor, and that person was to do the safely investing for his children’s behoof. This, then, made a trust, and we must look further into the will to see how the whole estate is divided up, how much of the estate is vested) in the trustee and what is the nature of her trust and what estate is given to the cestui que trustent.

“And the annual income arising to each child shall be subject to her control, whether married or unmarried.” From this it seems that it was testator’s intention that so far as Ins daughters’ interest or relation to his estate, they were to occupy exactly the same position, and always provided the income was paid to his children, it made no difference whether they were married or unmarried. It would seem as though this language would rebut the suggestion that this was only a marital trust. “And in no instance shall the husband of any such child have any power or control over the principal or interest of such share.” The expression “principal or interest” is a layman’s expression of emphasis, as we would say “he is to let it alone, * lock, stock and barrel. ’ ”

We now come to a most significant part of item second: “ Nevertheless, each of my children shall have full power and authority to will and devise her portion of said inheritance in such manner as she shall see fit.” There is one thing made perfectly aparent by this close of item second and the whole of item third, and that is, that be the estates what they may, each child’s respective portion was to be there intact at the time of her death. Now this condition could only be assured by limiting the childrens’ estates to life estates. Of course, when you have said this, you have said it all, because it follows if a child made a will, her devisee would take title by appointment in her will from Edward Harwood. If the child failed to make a'will, then the portion passed as directed in item third of Edward Harwood’s' will.

Of course the intention of the testator is controlling in the interpretation of wills. Both sides start their arguments with this principle. It would encumber an opinion to cite the Ohio eases on this point, as anybody can find them collated under the head of “Devise” in Bates’ Digest; and, after all, we have the classic of Smith v. Bell, opinion by the great chief-justice, in 6 Peters, p. 68. But we must not forget that it is the intention expressed in the will which must prevail. We are not interested in an intention independent of that which testator has tried to express (Townsend v. Townsend, 25 O. S., 477). As Mr. F. Vaughn Hawkins has said in his essay on this subject, and incorporated by Professor Thayer in his Preliminary Treatise on Evidence at the Common Law, on page 602 of this latter work:

“It can not be too often repeated that legal interpretation is not a mere ascertaining of the intent; it acts only by putting a meaning consistent with the intent upon the words.
‘ ‘ Intention is not a mere inchoate act of the mind, that which a person intended to do, but took a step towards doing, but something which as a mental act was complete, and which the writer endeavored to express by the words he made use of, although those words in fact express his meaning more or less imperfectly. ’ ’

Hence it is that we have recourse to extrinsic evidence to ascertain the intent only when there is doubt and ambiguity as to the intent expressed.

“That where the meaning of the words is plain, it is not allowable to question its being the meaning of the writer, is a fundamental maxim of all systems of interpretation.

“Tibi in verbis nulla ambiguitas, ibi nulla occurrit voluntatis quaestio.

“Non licet interpretare quae interpretations non egent.” Thayer, supra, p. 584.

Wills are not reformed like contracts by extrinsic evidence in equity; wills are interpreted. Here is the fallacy in the argument on page eighteen in Mr. Matthews’ brief.

In order to avoid the repugnancy existing between an absolute gift in the beginning of item second and the limitation upon the same in item third, counsel for plaintiffs seek to tear item third out of the will. Now if there is anything in the will about which every lawyer in any way connected with this case is agreed, it is as to the meaning of item third. We all agree that if the condition arises where item third is called into application, it is possible that by the death of one of Edward Harwood’s grandchildren having a child before the'death of such grandchild’s mother, testator’s daughter, the great-grandchild might be unjustly disinherited. This, after all, is the principal point of counsel for plaintiffs. It is the bugaboo to frighten the interpreter away from the construction claimed by counsel for the trustee. In the first place, the possibility of such happening is just about as remote as the thought was from .the mind of the testator. In the second place, “What of it?” We can not help it. That is what the testator said in plain, unequivocal language. If, because we do not approve of what •testator has said or because we do not see how he could have intended what he has said in unmistakable and unambiguous language, we are to tear a plain provision out of a will, we would not be interpreting a will, but destroying it. The same 'is to be said in reply to the argument based upon possible intestacy by the death of a daughter leaving no children and neither of her sisters surviving her.

These results of intestacy and of disinheriting one in the line of descent are to be avoided if possible, if the language producing such results is susceptible of any other possible construction; but here it is not.

“The rule that a testator will not be presumed to have intended to die intestate as to any part of his estate, to- which his attention seems to have been directed, applies only in the construction of a will the language of which is of equivocal import.” Gilpin v. Williams, 17 O. S., 397.

“It appearing from .the will construed in this ease, that it was clearly the intention of the testator to limit the estate given to his wife, in the lot in question, to a life estate, and that no disposition was made of the remainder therein, it passed under the statutes of descent to his heirs at law; and though owing to the unskillfulness of the draftsman, reference is made to the residue of the estate that might remain after the payment of debts as if he contemplated a disposition of it, yet the whole ■will is to be taken together, and if it appears that only a life estate in the lot is devised, and no person named to take the remainder, it must receive such construction. ’ ’ Colston v. Bishop, 1 C. C., 460.

No; item third is in the will to stay, to have what effect it may if the time ever comes for its particular application, and to have whatever modifying effect its presence now may have upon the other provisions of the will.

It is claimed on behalf of plaintiffs that there is such total repugnancy between the absolute estate given in item second and the provisions of item third as to make item third void. To this contention there are two answers: First, the estate given in item third is not so clearly and manifestly an absolute estate as to make the provisions of item third obviously and necessarily directly.and fatally repugnant. We said above that if item second stopped at the first comma, we would be of the opinion that the word “apportioned” would be given a dis-positive signification, as in Brasher v. Marsh, 15 O. S., 103. But this is not the case; the item does not stop there, but the very next words are a limitation and the beginning of a series of limitations. As was said in Linton v. Laycock, 33 O. S., 128, a devise will be implied from a direction to divide, so at best the absolute estate is by implication and not by express devise, and this implication will certainly not be made in disregard and contradiction of express words in the same item and in other parts of the will.

Further, this claim of a total repugnancy begs the whole question, because such repugnancy does not exist unless you assume that estate given in item second is an absolute estate, and that is the very subject of inquiry here. The only doubtful and ambiguous thing in the will is the nature of the estate given by item second.

Second, the rule prevailing in England and in such states as Pennsylvania, which rigorously rejects a provision for a remainder after an absolute gift, has been much softened and toned down in Ohio by our rule which gives supreme importance to the intention of the testator as construed from the whole will, giving due weight and consideration to every part.

“The whole instrument is to be examined and all taken together and construed as one in order to arrive at the intention, and effect given to every part if possible. Isolated passages are not to control.” Decker v. Decker, 3 O., 157; Williams v. Veach, 17 O., 171; Starling v. Price, 16 O. S., 29; Edwards v. Rainer, 17 O. S., 597; Townsend v. Townsend, 25 O. S., 477; Carter v. Reddish, 32 O. S., 1.

It is true, as was said in Collins v. Collins, 40 O. S., 394, quoting from Thornhill v. Hull, 2 Clark & Finn., 22:

“It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate can not be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate. ’ ’ And Parker v. Parker, 13 O. S., 95; Pendleton v. Bowler, 27 B., 313.

On the other hand, if two clauses of a will are inreconcilable, the last controls the first (Parker v. Parker, supra). But the controlling principle is- as stated in Baxter v. Bowyer, 19 O. S., 490:

“Conflicting provisions of a will should be reconciled so as to conform to the manifest general intent, and it is only in cases where such provisions are wholly and absolutely repugnant that either of them should be rejected.
“Where, by one clause in a will, property is devised or bequeathed, by words prima- facie importing an absolute estate, and by a subsequent clause is given in remainder to another person, the first devise or legatee takes only a life estate, and the limitation over is valid.”

And more fully in the opinion, per Welch, J.:

“The first question involved is whether, by the terms of the will, the wife took an absolute estate in fee, or only a life interest. The language of the first item, construed by itself, would undoubtedly give her a fee. But the whole will must be construed together; and in the light of the whole will, and of the surrounding circumstances, each clause is to receive its interpretation. It is only in cases of total1 and irreconcilable repugnancy that any of the provisions of a will can be rejected. It is claimed that there is such a repugnancy here, and that the last two items of this will must be stricken out, leaving the first item to stand alone as the testator’s will. Having disposed of the whole estate absolutely by the first item, the other two items, it is said, are a mere attempt to do what the law will not permit, to engraft a remainder upon a fee simple estate.
“It is true that a remainder can not be engrafted upon a fee. The true reason of this rule, however, is not because the law will not permit it, but because the thing is impossible. I can not give the whole of my estate to one, and part of it-to another. I can not give the absolute fee to my wife and the remainder to the church, for the same reason that I can not give a square circle, or give nothing, because it involves an absurdity. Before this rule can be applied, it must first be well ascertained that the will in question does, when construed fairly, and in the light of all its provisions and surroundings, give an estate in fee. Whether this will does so, is the very question here.
“The testator’s intention is the polar star in the construction of a will. It is quite evident on the face of this will, and in view of the fact that neither the testator nor his wife had any children, that he intended his property should go to her and the presbytery, to the exclusion of all others. By the last two items he undertakes to dispose of the entire estate in remainder. Tie gives, unconditionally and- absolutely, $200 for tombstones, and a sum sufficient to defray the expenses of the wife’s last sickness and death; and then provides that, when these two things have been adjusted, ‘all the property then remaining’ shall go to the presbytery. When remaining? Why, remaining after the deduction of these two sums. In other words, all the estate, except these two sums and the widow’s life interest, shall go to the presbytery. These last two items constitute a very important part of the will, and are not to be rejected if they can at all be reconciled with the provisions in the first item. To •reject them in toto would be doing much greater violence to the language of the will than would be done by holding that the testator intended by the provisions of the first item to give a life estate only. What are the provisions of the first item? They are simply these: He gives his ‘property’ to his wife, with the unrestricted right to ‘possess’ and ‘use’ it, and with a power of ‘sale,’ to be exercised publicly or privately. The provisions as to the ‘possession’ and ‘use’ of the property add nothing to the word property, and certainly do not import an absolute estate. Indeed, their introduction at all, after the clause devising the ‘property,’ would seem to negative the idea that the testator supposed he had already vested the property absolutely in his wife. If he supposed he had already made her the absolute owner, why make amy provision as to her manner of using or possessing it? She would, as a matter of course, use and possess her own property as she pleased. The same may be said of the power to sell. The absolute owner of property can sell it when and where he pleases. But the tenant for life can not sell without' a power granted for that purpose. When so granted, prima facie, it is in the nature of an executorial power, or power to change the property into money for the benefit of the estate, or for its better enjoyment. That such is the nature of the power intended here, is also to be argued from the fact that a similar power is given to the wife to collect and pay the debts of the estate. The only thing, therefore, in the first item, which is actually, or even apparently repugnant to the limitation over, is the word ‘property.’ The testator gives to his wife all his ‘property.’ If he had added the words ‘for life’ after the word property, all parts of the will would harmonize, and nothing need be rejected. But any equivalent words will surely answer the same purpose; and words fully equivalent are found in the provisions of items two and three. Read together, the two apparently conflicting provisions would stand thus: ‘I give all my property to my wife, with remainder in fee at her death to the Presbytery of Cincinnati.’ Such is substantially the language of the will construed in Smith v. Bell, 6 Peters, 68. Indeed the language there was more repugnant than here. The language there was, ‘I give to my wife, Elizabeth Goodwin, all my personal estate * * * to and for her own use and benefit, and disposal absolutely; the remainder of said estate, after her decease," to be for the use of said Jesse Goodwin.’ And yet the court held, Chief Justice Marshall delivering the opinion, that the wife took only a life estate, and that the limitation over was effectual.”

Also, case of Pruden v. Pruden, 14 O. S., 251, opinion by Ranney, J.:

“When an instrument is open to two constructions — the one consistent and the other repugnant to law, or the one will give effect to the whole instrument and the other will destroy a part — the former must always be adopted.
“The rule which destroys a remainder in personal property, when an 'absolute power of disposition is given to the first taker, does not apply in any ease where a total repugnancy between the remainder and the prior interest does not exist.” Also see King v. Beck, 15 O., 559.

In Johnson v. Johnson, 51 O. S., 446

“A testator, after providing for the payment of his debts, used the following language in his will: ‘Second. I give and devise unto my beloved wife, and her assigns, all of the remainder of my property, both real and personal, however the same may he known, or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper; but if, at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters, and their children, if deceased, the children to have the amount the parent would be entitled to if living.’ Held: That under this will the widow took only a life estate in the property, both real and personal, with power to bargain, sell, convey, exchange or dispose of the same as she might think proper for consumption in her life support, and that what remained at the time of her death, unconsumed in supporting her, belongs to the remaindermen designated in the will.”

But it seems to us idle to discuss this proposition or to cumulate authorities, in view of Chief Justice Marshall’s 'opinion in Smith v. Bell, 6 Peters, 73- — especially at the top of page 76. See also Howe v. Fuller, 19 O., 56; Stableton v. Ellison, 21 O. S., 533.

It is contended by counsel for plaintiffs that the clause, "Nevertheless, each of my children shall have full power and authority to will1 and devise her portion of said inheritance in such manner as she shall see fit, ’ ’ is without significance because it is perfectly consistent with an absolute gift. But when you examine item third and see what happens if his daughters do not make wills, then this clause becomes pregnant with meaning and it becomes evident that by it an additional power was given not included in the first gift.

To sum up this branch of the discussion, the one uncertain and ambiguous thing in the will is the nature of the gift or devise by the two-thirds being “equally apportioned”; and the clear and unequivocal things in the wiB <are the limitations upon the gift or devise.

As to authorities of counsel for plaintiff, we find nothing particularly helpful to the case at bar in the case of Turner v. Hellard, 30 Chancery Division, 393, only the general rule favoring testacy. The same is to be said of Hughes v. Pritchard, 6 Chancery Division, 29.

The definitions of the primary or paramount intent of a testator and of the secondary or minor intent in Smith’s Edition of Fearne on Remainders, p. 252, is in accord with our understanding of Mr. Harwood’s will. The primary or paramount intent is that the ancestor, one of Mr. Harwood’s daughters, should have the enjoyment of the estate for her life, and subject thereto the estate should descend to all his descendants so far as the rules of the descent will permit. The secondary or minor intent is to accomplish the primary or paramount intent in a particular mpde — in such a mode at least as the devisor supposes as to secure that primary or paramount intent from being defeated by the act of the ancestor. In other words, the second or minor intent is that the ancestor should have a life estate only and that her issue should take by purchase.

So here the testator’s primary or paramount intent was that Mrs. Robbins was to have a life estate only and that those who took after her should not take as her heirs at law but by purchase from Edward Harwood. Relying in her maternal' instincts to preserve the property in the line of her descendants he prescribed the mode by which she under the power was to name those who were to take the remainder from the original testator, and in default of her exercise of the power, testator prescribed who should take the remainder from him. Now even although the minor or secondary intent may be defective as a mode of securing the carrying out the primary or paramount intent, any defect in the minor or secondary intent is not allowed to defeat or control the primary or paramount intent when it is ascertained.

As to Mickley’s Appeal, 92 Pa. St., 514, while we do not deem is safe to rely on Pennsylvania.cases in matters like the ease at bar where the Ohio Supreme Court has so clearly declared the law, there is nothing in this case at variance with the law of Ohio or our conclusion. It is a case of a bequest made to a person absolute in the first instance. That is the precise inquiry here.

The cases of Walfer v. Hemmer, 144 Ill., 554, and Wilson v. Turner, 164 Ill., 398, are like the Ohio cases -of Collins v. Collins and Parker v. Parker, supra. The same can be said of v.Turner, 164 Ill., 398, are like the Ohi ocase of Collins v. Douglass, 78 N. W. (Iowa), 212, is like the Ohio ease of Johnson v. Johnson, 51 O. S., 446. The case of Hambel v. Hambel, 80 N. W. (Iowa), 528, might be classed with the ease of Collins v. Collins, supra. The same of McNutt v. McComb, 58 Pacific (Kansas), 965. The case of Webster’s Trustee v. Webster, 21 S. W. (Kentucky), 332, is either not in point or at variance with the Ohio authorities; it is so different that it is hard to tell. It is not helpful in construing the ease at bar. ■ The case In re Engel’s Estate, 36 Atlantic, p. 727, is a Pennsylvania case, and as that state follows the English rule as to repugnancy, is not an authority here. The case of Megargee v. Naglee, 64 Penna. St., 216, is clearly a case of a marital trust and an unsafe authority for the reason assigned above to all Pennsylvania cases. The ease In re Tyson’s Estate, 43 Atlantic, 131, is a Pennsylvania case and seems at variance with the other cases from that state and to support the contention of counsel for defendants herein. In this case the court speaks of restoring the rule as to intention to its original and proper prominence. In Re Kelly’s Estate, 44 Atlantic Rep., 289 (Pennsylvania), is simply a case where the court construes a will as it finds the intention.

We have examined all the cases cited, out of deference to the learning and research of counsel, but we are constrained to say that we find very little assistance in them: first, because they are not needed to establish any of the well known canons of construction; and, second, because of the singularity of every will others can not help much.

Having come to the .conclusion that Harriet C. Robbins, Gertrude Gordon and Adeline French each take a Ufe estate only in their respective portions of the two-thirds mentioned in item second, the only question remaining is what effect has the contract made by the parties in their effort to terminate the trust.

“Although ia trust may not have ceased by expiration of time, although all its purposes may not have been accomplished, yet if all the parties who are or may be interested in the trust property are in existence, and sui juris, and if they all consent and agree thereto, courts of equity may decree the determination of a trust and the distribution of the trust fund among those entitled. A trust will not be continued merely that the trustee may continue to receive compensation from it. If the cesiuis desire its termination it will not be maintained for the benefit of the trustee.” Perry on Trusts, p. 920; Gloyd v. Roff, 2 C. C., 253; Taylor v. Huber, 13 O. S., 288.

In the case at bar everybody interested in these three several trusts has not joined in an agreement to determine.

We pass the question of' the possibility of either of testator’s daughters hereafter having children.

There are contracts between Mrs. Gordon and her children and between Mrs. Robbins and her children providing for a determination of the trusts. There is nothing to indicate any consent on the part of Mrs. French to a termination of the trust of her portion. Neither is .there any consent on the part of Mrs. Robbins to the termination of the Gordon trust, nor of Mrs. Gordon of the Robbins trust, and nothing in regard to the French trust. There are cross contingent interests entirely unprovided for.

It was held in Sise v. Willard, 164 Mass., 48:

“A bill in equity to compel an absolute transfer to the plaintiff of a fund held for him by the trustee under a will can not be maintained, if his interest in the fund is only a life interest coupled with a power of testamentary disposition.”

And was further said in the opinion, page 51:

“It is premature now to consider whether, on the death of the plaintiff leaving issue, but having made no testamentary disposition of her share, that share will go to such issue.”

As we have said before, we find that it was the intention of the testator that the respective portions of each of his daughters should be intact at the time of her death. The trust can not even by agreement be determinated in a manner to defeat this intention.

“A testator devised land to his three daughters, H. M and P, their heirs and assigns, with proviso that in ease P should remain unmarried, and should make no disposition of her estate by will, her share should at her death be equally divided among her sisters, if surviving her; if not, then among their children. Held, following Kent v. Armstrong, 2 Halst. Ch., 637: That P took only a life estate, with power of testamentary disposition. Held, also: That the release or conveyances of IT and M and those of M’s children (she is dead), and IT and her children, did not perfect the title.” Cantine v. Brown, 46 N. J., 599.

“Upon a d,evise of real estate to executors in trust to permit a married daughter ‘to use and occupy the farm and to take the rents, issues and profits thereof to her own use during her natural life, free from any control of her present or future husband, and not to be in any wise liable for any debt or debts he now owes, or which any future husband may hereafter contract,’ the court will not upon the death of the husband permit the trust to be set aside, or the estate to be conveyed to the cestui qui trust.” O’Kill v. Campbell, 4 N. J. Eq., 1..

John W. Wa-rrington and C. B. Mattheivs, for plaintiffs.

Harlan Cleveland and Albert Bettinger, for Amor Smith and Mr. French.

Robert P. Hargitt, for Mrs. French.

As to the conveyance and the contracts by Mrs. Robbins and Mrs. Gordon; to make wills—

“There can be no doubt of the legal right of one, having the exclusive ownership of property, to enter into a contract to execute a will in favor of the other contracting party, and if a will executed under these circumstances be subsequently canceled, the aid of a court of equity can be invoked.
“But where the power of disposition by will is given to a person having no reversionary interest^ an attempted execution of the power by a will made in conformity with the terms of an alleged contract, is invalid. The power is not thereby exhausted, and such will is revoked by a subsequent will duly admitted to probate.” Wilkes v. Burns et al, 46 Md. Rep., 64.
“Where a person'is tenant for life with a power to appoint the inheritance by will only, and is desirous to sell the fee simple, he may convey to the purchaser for a long term depending on his life, and exercise the power in the purchaser’s favour by will, and covenant not to revoke it. The title of course will be incomplete during the vendor’s life, as he may choose to revoke the will, and drive the purchaser to his remedy under the covenant; so he may revoke' the will by a clandestine act, and leave no assets to answer the breach of covenant. But if a purchaser be willing to incur the risk, no objection can be raised to the execution of the power should it ultimately take effect. It is a mistake to call it an execution by deed, for the donee has still full power to revoke the will; the performance of the covenant can not be enforced, but damages only can be recovered for a breach of it.” Sugden on Powers, 312.

We are therefore of opinion that the trusts created in Edward Harwood’s will must stand during the respective lifetimes of his daughters, and plaintiffs’ petition will be dismissed.


source: Caselaw Access Project

license: Public Domain

text:
    NOTICE OF LOSS OF EXPRESS PACKAGE IN TRANSIT.
    [Circuit Court of Hamilton. County.]
    The Adams Express Company v. W. M. Gordon.
    Decided, February 11, 1905.

      Pleading — Failure to Deny Averment of Answer in Reply — Charge of Court Assumes Denial — Reasonableness of Rule of Express Company as to Notice of Loss of Package — A Question for the Jury.

    1. In a suit to recover from an express company for money lost in transit, it is error to charge the jury that failure on the part of the company to demand the original receipt was a waiver of that condition, where no waiver had been pleaded.
    2. The reasonableness of a rule of an express company requiring that, in case of a claim being made for a package lost in transit, the original receipt must be produced within thirty days annexed to the notice of loss, is one for the jury to determine under all the circumstances of the case and proper instructions by the court.
    Giffen, J.; Jelke, P. J., and Swing, J., concur.
    This action was commenced to recover the value of a package containing one hundred and three dollars in money delivered to the express company at Chicago, Illinois, to be carried to Cincinnati and delivered to W. G. Howard.
   The express company denies that it did not deliver the same, or that it was wholly lost to the plaintiff; and, as a second defense, pleads an agreement that it should in no event be liable for the loss of said money unless claim therefor should be made in writing at its office in Chicago within thirty days from the date of this agreement in a statement to which said agreement should be annexed.

Plaintiff by reply avers that he notified the company in writing of the,loss of said money within the thirty days, but does not deny the averment that said agreement was not annexed to the notice. It must be taken as true, therefore, that the agreement containing the condition was not annexed to the notice of claim when made.

The court charged the jury that the failure to demand the original receipt would be a waiver on the part of the express company. We think this was error for the reason that no waiver was pleaded. Insurance Company et al v. Baldwin, 62 O. S., 368.

John R. Schindel, for plaintiff in error.

Edward M. Ballard, for defendant in error.

This or like conditions in contracts with express companies has frequently been before the courts of other states, and its reasonableness doubted. But no such question was raised in this ease, and if presented would be one for the jury to determine under all the circumstances and under proper instructions from the court.

The evidence shows that the package was received by a young lady in the office of Mr. Howard; that she had been accustomed to receive, without objection from Mr. Howard, deadhead packages containing rate sheets and other papers of no intrinsic value; but there is no testimony tending to prove that she had any actual or implied authority to receipt for packages of value. There was no error in admitting testimony concerning the refusal of this company to deliver a like package to one other than the consignee at a different time and in a different office, for the reason that the court limited it to the proof of a course of dealing between the parties.

That part of the charge on pages 32 and 33 of the bill of exceptions, where the court speaks of the company being mis^led by the habit or custom, is most favorable tO' the express company, and could not have been prejudicial.

For error in charging the jury that the failure to demand the original receipt would be a waiver when none was pleaded, the judgment will be reversed and cause remanded for new trial.


text:
    RAILWAY TERMINALS ADJACENT TO RESIDENCE PROPERTY.
    [Circuit Court of Hamilton County.]
    Margaret C. Ross et al v. The Cincinnati, Lebanon & Northern Railway Company.
    Decided, February 10, 1905.

      Railways — Nuisance from Operation of — Injury to Residence Property —From Proximity of Terminal Tracks — Is Damnum Absque Injuria.

    Where railroad terminal tracks are located in good faith, without regard for the convenience or advantage of the railroad company, hut with a view solely to the reasonable and necessary convenience of the shipping and receiving public, and the trains thereon are operated with reasonable care and without negligence, making no more noise, smoke or nuisance than is incident to a proper handling of the cars, whatever of a nuisance to property in the vicinity may he created is like in legal character to that to property on or near the main tracks of a railroad, is not cognizable at law and is damnum absque injuria.

    Jelke, P. J.; Swing, J., and Gippen, J., concur.
    The plaintiffs herein are the owners -of lots and lands abutting on the north side of Beecher street, Walnut Hills, between Gilbert avenue and the right-of the way of the Cincinnati, Lebanon & Northern Railway Company, the defendant.herein.
   The defendant railway company having secured from the city of Cincinnati permission to cross Stanton avenue, has built a large number of tracks on the property immediately in the rear of plaintiff’s property; that is, adjoining it on the north on the low ground, being between thirty and forty feet below the rear of complainants’ premises at the east running out to almost nothing where it crosses Stanton avenue. These tracks are provided and used by the defendant railway company as terminals for the receipt and discharge of freight, most of this being of a heavy nature and in carload quantities.

It is alleged that the backing and switching 'of cars upon these tracks by reason of the noise, smoke and noisome vapors coming from the locomotives, is an intolerable nuisance to complainants’ residences on Beecher street, their property being improved by dwellings of a beautiful and substantial character. It is admitted, however, that the railway company is not negligent in the operation of its locomotives and in the handling and switching of its cars, and that it does not create any more noise, smoke, soot or offensive vapors than is necessarily incident to the proper use of its trains and for the purposes for which said terminals were built.

There is no doubt if that which the defendant railway company is doing is an illegal trespass upon the property rights and comfort of plaintiffs, that a court of equity will enjoin the same. It is contended, however, on behalf of the defendant company, that unfortunate as this may be and offensive and as much of a nuisance as it may be to complainants, it is nevertheless unavoidable, and incident to the transaction of its railway business and the performance and doing those things as a quasi public corporation, for which it is chartered and enfranchised to do, and that the things complained of are damnum absque injuria.

A large number of cases have been cited by counsel for plaintiff, with the leaders which bring out the principles underlying the parties’ respective rights: Balt. & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S., Reports,, 317; The Chicago & Gt. Western Ry. Co. v. First Meth. Episcopal Church of Leavenworth, Kans., 102 Federal Reporter, 85, both of which cases were considered by this court in the ease of The Cincinnati Connecting Belt R. R. Company v. Burski, 4 C. C. — N. S., 98.

No case exactly like the case at bar has been cited to us. We begin with the statement that the railway company has no right to subject an adjacent property owner to any kind of a nuisance, be it of noise or dirt, sufficient to be cognizable at law, for its own convenience, interest, or advantage.

It is recognized that the operation of a main line of railroad, either in a public street or on its own private right of way, is more or less of a nuisance to all the abutting and adjacent property which it passes, but for reasons of public necessity, the courts have refused to recognize such nuisance as being a nuisance, cognizable by the law. It is said that the law must shut its eyes to the wrong, such as it may be, perpetrated upon these abutting property owners, else the building, maintenance and operation of railroads would be impossible, and that hence whatever such property owners must suffer is said to be damnum, absque injuria.

The U. S. Supreme Court, in the ease of Baltimore & Potomac Railroad Company, supra, compelled the railroad company to remove its roundhouse and shops from the vicinity of the Fifth Baptist Church, for the reason that the railroad company could maintain its roundhouse and shops some place else, and it made no difference at what inconvenience or disadvantage to the company. The same was true of the hydrant and station involved in The Chicago & Great Western Railway Company v. The First Methodist Episcopal Church. There was no uncertainty in the court’s expression as to the hydrant, but the court" was not so clear as to the legal status of the passenger station, but inasmuch as the station .and hydrant were joined and confused, the court enjoined the whole matter. The question then herein involved is, are the terminals of a railway, which are necessary to properly serve the public, for the service of which the railway company is chartered and permitted to operate, different in character, before the law, from its main tracks ? ,

Of course it is clear that a railroad would not be a railroad and, so far as serving the public is concerned, would be an empty and vain thing without terminals reasonably convenient and accessible for the shipping public. One can also well conceive the main line of a railroad with three, four or five parallel tracks operating so many trains, as to actually be as much or more of an annoyance than a terminal yard.

In the Consideration of this case, the court assumes because there could be no object in the railroad or anybody else doing otherwise, that the site of these terminals had been selected in good faith and with due consideration for the receiving and shipping public. It is what the public needs and requires, that furnishes whatever saving grace there may be, if any, to the railroad. The railroad, on its own account, receives no consideration. The court will not listen to .complainants’ saying that these terminals might just as well be located a mile further out in the country or a half mile further into Ihe city, because the same questions could there arise, and the naked legal question as to such terminals must at some place.be met.

In the absence of all charges of negligence or want of due diligence in the selection of a location or bad faith, we incline to the view that these términals must be put on the same footing as the main tracks of a railroad, and that the nuisance and annoyance they may inflict must be said to be damnum absque injuria.

Further, there are other elements involved in this case which lead us to somewhat resolve our doubts against the complainants. The relative topographical situation of complainants7 and defendant’s property happens to be a little fortunate. It makes the nuisance not quite so bad as it might be on account of the elevation of the sites of these handsome residences and their distance away on their spacious lots, so that if they have a separate property right which is injured and entitled to protection, we would be compelled practically to hold that the same is true of nearly all the property within a quarter of a mile radius of these terminals, which would make the establishment of terminals and the convenience of unloading and receiving freight practically prohibitive, and be a denial to the public of one great, modern utility.

There is another ground which would justify the court in denying an injunction, and that is, the court being in doubt as to the legal quality of the acts done by the defendant railway company and complained of by complainants, that until the exact character of the same is established in an action at law, a court of equity should be slow to intervene by injunction— injunction in cases of nuisance being permitted on account of the continuous nature of the acts which are legal trespasses aud to prevent a multiplicity of suits.

Charles E. Tenney, for plaintiffs.

Maxwell & Ramsey, for defendant.

There being a good deal of doubt as to whether the things done here are in fact a nuisance, cognizable at law, or an illegal trespass upon the rights of complainants, the court is inclined to think that it should withhold an injunction until these rights are ascertained and defined in an action at law.

An injunction will, therefore, be denied.


text:
    GOOD FAITH IN THE PURCHASE OF NOTES IMPRESSED WITH A TRUST.
    [Circuit Court of Lucas County.]
    The Merchants & Clerks’ Savings Bank Company v. William Schirk et al.
    Decided, November 7, 1904.

      Guardian and Ward — Unauthorized Sale of Notes Belonging to Ward’s Estate — Purchaser Liadle as for Conversion — At Suit of Bondsmen of Guardian — Good Faith of Purchaser not Material — Inef-. fectual Ratification of Sale dy Prodate Court.

    1. Good faith on the part of one purchasing securities from a guardian, the proceeds from which were misappropriated, is not material in an action against such party for recovery of the amount so lost, where it appears that the guardian was without authority to make the sale.
    2. A letter from the probate judge of the county in which a guardian was appointed, stating that she has removed to another state with her wards, and has been appointed guardian in that state, and that a transfer of the Ohio securities belonging to the wards having become necessary, the sale of the securities to the party to whom the letter is addressed is thereby ratified, merely carries the information that the entire management of the estate of the wards has been transferred to the courts of such other state, and is without significance in so far as the question of authority for the sale and transfer of the securities may be concerned.

      Parker, J.; Hull, J., and Haynes, J., concur.
    Electa R.. Stagner in 1894 was appointed guardian of the 'estates of her minor sons, John David Stagner and Joseph William Stagner, the former aged nine and the latter seven years. She received something like $2,000 on their account as guardian, and $1,000 of that she loaned to one John Stagner, her father-in-law, who gave her therefor, as guardian, his note, secured by mortgage on property in East Toledo — the mortgage running to Electa R. Stagner, as guardian of John David and Joseph William Stagner, minors.
   In 1897, early in the year, Mrs. Stagner removed with her minor children, her wards, to- Newton county, Missouri, and on the 12th day of March of that year she made application to the probate court of that county under the laws of Missouri for letters of guardianship there, and on the 19th day of March, 1897, her petition was granted and her bond given, and she was duly appointed as guardian. Thereupon, in pursuance of the law, she appears to have advised the probate judge of this county of what she had done in that behalf, and forwarded to him the proper evidence of her action. This should have resulted in all of her affairs as guardian being transferred to that ■ court. It appears, however, that the final account or statement of her affairs was not passed upon by the probate court of this county, so as to formally release her securities here until early in the year 1898. The reason for its dragging along in the court here for several months is not apparent. This matter does not appear to have been attended to as promptly as it might have been.

In the meantime, along in November, 1897, Mr. M. B. Lemmon, an attorney at law who was then practicing at this bar and claiming to act for her as her attorney, sold the note and mortgage that I have mentioned to the Merchants & Clerks’ Savings Bank Company- — a six per cent, note, on which some interest had accrued — and it paid for it something over $1,100, figuring the discount in such a way that it would stand to it as seven per cent, paper.

Mr. Lemmon did not account to the guardian for all the money received from this sale; he accounted for about $600 of it, and the remainder he wrongfully appropriated to his own uses, and he has not made the loss good to her, and, because of that, her Missouri bondsmen instituted an action in this court to recover from the bank the amount that the attorney had wrongfully appropriated, claiming that it was a part of the estate of the heirs, and that the bank had not acquired a good title to this note, and that it was not justified in paying the money over to Mr. Lemmon. The bank, on the other hand, claimed that it had bought this paper in entire good faith, supposing that Lemmon was authorized as her attorney, and that she, as guardian, was authorized to dispose of the’ property, and that therefore it ought not to be required to make the loss good; that the loss, in fact, should fall upon her. The bank invokes the principle that where one of two innocent parties must suffer from the fault or default of a third person, that one who put it in the power of such person to cause a loss, should suffer the same, rather than the other of the innocent parties. I may remark in passing, however, that it should be remembered that the real parties are not Electa R. Stagner on the one part (who it is claimed put it in the power of Lemmon to defraud), and the Merchants & Clerks’ Savings Bank on the other. If it were a question between them, the principle invoked would be applicable. But the real parties here, upon'the one side are these wards, who have not by any act of theirs, and could not put it in the power of Lemmon to defraud themselves; and on the other side the 'bank, so the case must be settled upon a different principle. The issues were made up in the court below and the case tried, i. e., evidence was introduced, and then the judge of the trial court directed a verdict in favor of the plaintiff, upon the ground or theory that the bank had not introduced any evidence tending to support its defense.

Now, there is a good deal of oral testimony and written evidence that bears upon the question whether Lemmon in fact represented this guardian, whether he was even authorized by this guardian to represent her, and a good deal of sharp conflict along that line, and a good deal of evidence as to the transactions between Lemmon and the bank and the action taken by the bank, through its officers, to acquaint itself with the situation, and to inform itself in such a manner as to protect itself (and, perhaps, to not do any wrong to anybody else), of inquiries made, investigations made, etc., and upon this it is claimed by the bank that the testimony shows that the bank exercised the best of faith, and because the evidence at least tends to establish that, it is insisted on behalf of the bank that the court should not have taken the case from the jury, but should have submitted the case to the jury. There being evidence tending to show that the bank exercised good faith, we are called upon to say whether that is a matter of any consequence — whether it is a question of good faith, whether the question of the bank having exercised good faith should have been submitted to the jury, and whether if the jury found that the bank exercised entire good faith, that would have established a defense on the part of the bank.

In support of their contention that this would be and was a good defense, counsel for the bank have filed a brief, citing various authorities, and among them the ease of Jelke v. Goldsmith, Adm’r, found in 52 O. S., p. 499, which holds, in substance, that one buying notes and mortgages from an administrator in good faith and without notice that the administrator contemplates any wrong to the estate, is to be protected.

On the other hand, counsel for the plaintiff below, the defendant in error, amongst other authorities, cites the case of Strong v. Strauss, from 40 O. S., p. 87, which is a case where a guardian made a sale of the real estate of a minor ward and took notes of the purchaser for the deferred payments, payable to his order as guardian and secured by mortgage upon real estate, and it was held that when the purchaser found such notes bearing on their face the marks of a trust fund, he is put upon his inquiry, and, if he buys them from the guardian under circumstances fairly indicating that they were sold against the interest of his wards, he gets'no title from the guardian who misappropriates the proceeds of the sale. In the course of the opinion by Judge Diekman, this is said, on page 94:

“Instead of an unmistakable trust fund to be regarded as sacred, the defendant treated the notes in the hands of the broker as ordinary commercial paper. We do not think the notes in question should have been so classed. Made payable as they were to the order of William Rankin, guardian of the minors respectively named in the body of the notes, they could not have the unrestricted circulation of commercial paper, or bills of exchange and promissory notes negotiable by the law merchant. Far from being treated as commercial paper, bought before maturity, in the usual course of trade, for a fair value, we consider it the better rule, to hold the defendant as charged with notice of the peculiarly trust character of the notes, and as bound to exercise that high degree of caution in purchasing the same, which the protection of such trust funds demands.”

Counsel for the bank urges that, even if that rule were applied here, they produced evidence at least tending to show that the bank officers exercised a high degree of care and caution, and that therein their case differs from that of Strong v. Strauss; that in that ease it was found that the purchaser did not exercise care and caution in regard to the interest of the ward, whereas in the'case at bar, it did so, and that the question whether that was so should have at least gone to the jury. And as a part of its evidence of the fact that it exercised good faith, the bank introduced in evidence a letter signed by Judge Millard, who was at that time the probate judge of this county, which appears to have been written by him about the time the notes were bought by the bank, dated November 22, 1897, and which reads:

“Toledo, 0., November 22, 1897.
“Toledo Merchants & Clerks’ Savings Bank, Toledo, 0.
“Gentlemen: In- the matter of the estate of the Stagner heirs, of which Mrs. Electa Stagner is guardian, I have to say that the guardian has removed from this state to Missouri, in Newton county, and that the proper papers have been transmitted to me from the Probate Court of Newton County; that Mrs. Electa Stagner has been appointed guardian of the children, John and Joseph, under the laws of Missouri.
“Therefore the change of residence of the guardian necessitates the change of securities, and the transfer, by the guardián, of the securities to your bank, is ratified. Very truly,
“I. I. Millard, Probate Judge.”

Now that letter, it seems to us, handed to one making inquiry about this matter, was well calculated to mislead, although, if it is fairly considered, and if the inquiry which I have suggested is pursued, if carries the information that by her removal from the state of Ohio her powersi as guardian under the appointment made in this state have ipso facto ceased (Section 6272, Revised Statutes), and that the whole matter of the management of the estate of these wards had been committed to the control of the courts of Missouri, and the declaration of the judge that he ratifies the sale that has been made, or is about to be made, is perfectly idle and worthless; for, notwithstanding the fact that he had not yet entered upon the journal the entry which operated as a discharge of the bondsmen of the guardian here, he was apprised of the fact, by the filing of the papers from the probate court of Missouri, that that court had acquired jurisdiction over the subject matter, and what he says in this letter, though not exactly in that form, amounts to a statement of that fact.

The court below seems to have regarded the effort and the evidence tending to prove that the bank exercised good faith in the matter, as immaterial. If the question of the good faith or the .bad faith of the bank were to settle the rights of the parties here, or fix their rights, then, clearly, the action of the court below was wrong in taking the case from the jury; but we are of opinion after consideration of this matter that the action of the court in directing a verdict for the plaintiff was right, because it is not a question of good faith or bad faith at all; that is, not necessarily so. Under certain circumstances it might amount to that. If the probate court of this county had allowed this guardian to sell this property without an order of the court, while it retained jurisdiction over the subject matter, the question of good faith or bad faith might have been an important question in the case; but, upon looking into the _ laws of Missouri, as we read them and understand them, the guardian was without any authority whatever to sell these securities, and, therefore, of course, the guardian could not 'confer any authority upon Lemmon, and an examination of this matter would have disclosed that fact to the bank, and it can not supply this want of authority — this entire absence of authority — by any exercise of good faith, no matter how great.

I will call attention to certain of. the provisions of the laws of Missouri upon that subject. Sections 3504 and 3496 of the Revised Statutes of Missouri were read to us in argument, and I read Section 3504:

“The probate court shall order the proper education, support and maintenance of minors, according to their means, and for such purposes may, from time to time, make the necessary appropriations of the money or the personal estate or income of-such minor not otherwise provided to be used; and when the money, income or personal estate of such minor shall be insufficient or not applicable to such objects, purpose or purposes, the court may order the lease or sale of'the real estate of such minor, or so much thereof as may be requisite, or that said real estate be mortgaged for not less than two-thirds its real value, to raise the funds necessary to maintain, support and educate such minor.”

That section contemplates the making of an appropriation by the court for certain uses before the money is expended for such uses. Then Section 3466:

' “The guardian of the person, whether natural or legal, shall be entitled to the charge, custody and control of the person of his ward, and the care of his education, support and maintenance; the curator shall have the care and management of the estate of the minor, subject to the superintending control of the court; and the guardian of the person and estate of the minor shall have all the powers and perform all the duties both of the guardian of the person and a curator.”

I should have read that section first, as that is the natural order. Then I read Sections 3510 and 3511, which seem to us to be more to the point and to be conclusive upon this question of want of authority:

“3510. When it shall appear that it would be for the benefit of the ward that his real estate, or any part thereof, be sold or leased, or his personal property, or any part thereof, be sold, and that the proceeds be put on interest or invested in United States or state bonds, or in any other real estate, or in any other personal property, or in the preservation of the estate of the minor, the probate court may authorize and order such sale, leasing or investment.
“3511. To obtain such order, the guardian or curator shall present to the court a petition setting forth the condition of the estate, and the facts and circumstances on which the petition is founded. If, after a full examination, on the oath of credible and disinterested witnesses, it, appears to the court that it would be for the benefit of the ward that the personal estate, or any part of it, should be sold and reinvested or exchanged, the court may make an appropriate order for such sale and reinvestment or exchange, and thereupon the curator shall have the power to carry out such orders in all its parts. And if, after such full examination, it appears to the court that it would be for the benefit of the ward that the real estate or any part of it should be sold or leased, the court may make an appropriate order for such sale or lease, under such regulations and conditions, subject to the provision of this chapter in relation to the sale of the real estate of minors, as the court shall consider suited to the case, first requiring the guardian or curator to enter into good and sufficient bonds to make such leases and conduct such sales with fidelity to the interest of his ward, and faithfully to account for the proceeds of such sales and leases according to law, and as the order, of the court may require, if the court shall be of the opinion that such bond is necessary.”

I have read the latter part of the section to show that in Missouri the same care and formality is required with respect to the sale and reinvestment of personal estate as is required in the sale of real estate. Under that statute it seems to us entirely clear that the guardian had no right and no power to sell this security in the absence of an order from the Missouri court, and, therefore, the guardian could not confer authority upon the attorney to do it; and that the sale having been made without authority, the bank acquired no title to the securities, and was liable as upon a conversion thereof. The question of the good faith or bad faith of the bank is a matter of no importance in the case. The judgment of the court of common pleas will be affirmed.'

Chittenden & Chittenden, for the plaintiff.

C. B. Snider, for the defendants.


text:
    MECHANICS LIENS AND RIGHTS THEREUNDER..
    [Circuit Court of Cuyahoga County.]
    O. T. Lapham v. Harry Ransford et al.
    Decided, January 26, 1905.

      Mechanic’s Liens — Rights to he Construed Liberally — The Lien, Strictly • — The Affidavit — The Account — Vendor and Vendee — Agency of the Vendee.

    1. While liberality should be exercised in construing the rights of parties under a mechanic’s lien when it has once attached, the statute must be strictly followed in securing the lien.
    2. The affidavit for a mechanic’s lien must show that the material was furnished to, and under a contract with, the owner of some interest in the land, in order to bind the interest of such owner.
    3. The account attached to the affidavit for lien must show the relation of debtor and creditor between the owner of some interest in the land and the person claiming a lien upon the interest of such owner.
    4. A contract for the sale of land which provides that the vendor will •execute a deed of said land to the vendee upon the erection by •said vendee of certain houses on said land and the payment of the purchase price, does not, of itself, constitute the vendee the agent of the vendor, to order materials for the erection of said houses, nor render the interest of the vendor liable to a lien in favor of the person furnishing such materials on the order of the vendee.
    Winch, J.; Hale, J., and Marvin, ’J., concur.
    This case was heard on appeal and involves the validity of a mechanic’s lien which plaintiff claims upon certain premises in this city.
   It appears that defendant, Lester A. Cobb, trustee, was the owner of said premises, and on July 16, 1900, entered into a contract with defendant, Harry Ransford, by the terms of which it was agreed:

“Whereas, The party of the second part is desirous to build on said lots, it is hereby agreed by and between said parties to this agreement, that upon the erection of three (3) houses upon said lots by second party said party of the first part will execute a deed to second party for said lots, and will take a second mortgage upon said lots for the sum of fourteen hundred dollars ($1,400), said first mortgages being three thousand dollars ($3,000) upon said houses and lots. Said second party agrees with party of first part to pay the sum of seventy-five dollars ($75) when deed is signed on each house and seventy-five dollars ($75) when second payment is made on loan on eaeíi house, second mortgage to bear interest at the rate of six (6) per cent, per annum and to run three (3) years; interest payable semi-annually. ’ ’

Ransford entered into possession of the premises, put in two foundations and erected the frame and roof of one house, buying his lumber of plaintiff. He then abandoned his contract, failed to pay for the lumber and absconded. The partially completed house became racked and three feet out of plumb, before Cobb ever saw it.

Plaintiff says that Ransford came to him to buy lumber, representing that he owned the premises in question; Cobb’s name was not mentioned and no inquiry was made as to the real owership of the property.

To secure a mechanic’s lien for the value of lumber furnished by plaintiff, which he testifies went into this house, plaintiff filed an affidavit which reads as follows:

Dec. 22d, 1900.
“The State of Ohio, Cuyahoga County, ss.
“O. T. Dapham, being duly sworn, says that he is doing business as The O.' T. Lapham Co., and that the account hereto annexed, marked ‘Exhibit A,’ is a true and correct account of the labor performed, and materials furnished by affiant, doing business as aforesaid, to and for the said Lester A. Cobb, trustee, at said county, and that the prices thereof set forth in said account are just and reasonable, and that there remains due and unpaid thereon the sum of one hundred and ninety-two dollars.
“That said labor was performed and said materials were furnished at the time in said account mentioned, under and by virtue of an unwritten contract between said Harry Ransford, agent, who in making such contract was acting for said Lester A. Cobb, trustee, and O. T. Lapham, by which said lumber and materials were to be paid for when delivered.
“That said labor was performed and said’ materials were furnished, in good faith, and for the purpose of constructing certain dwelling houses standing on a lot of land hereinafter described.
“And this affiant says that the said L. A. Cobb, trustee, was, at the time said contract was entered into, and said labor was performed, and said materials were furnished, the owner of .said buildings, and that said buildings are situated upon a certain lot of land owned by said Lester A. Cobb, trustee, and in which land said Harry Ransford has or claims an interest, and which said lot of land is described as follows, to-wit: Situated in the city of Cleveland, county of Cuyahoga, and state of Ohio, and known as sub-lots 156, 157, 158 and 159 in the Madison Park Allotment, as shown by plat recorded in Yol. 23 of Maps, page 14, Cuyahoga County Records.
“And this affiant further says that said 0. T. Lapham is the legal owner of the above mentioned claim.
“The said 0. T. Lapham claims a lien in the premises.
“0. T. Lapham.
“Sworn to by said 0. T. Lapham before me, and by him subscribed in my presence, this 22d day of December, A. D. 1900.
“Frank Higley,
“Notary Public ”

The account attached is headed: “Lester A. Cobb, trustee, by Harry Ransford, agent, Prescott St. Bought of the 0. T. Lapham Company.”

Under this affidavit plaintiff claims a lien both against the interest of Cobb and the interest of Ransford in said premises. The proof shows no right in Ransford to act as agent of Cobb, unless it may be gathered from the provision in the contract between them regarding the erection of houses upon Cobb’s lots.

Does this affidavit create any lien as against Ransford’s interest in the premises?

We think not, for while liberality is exercised by courts'of equity in construing the rights of parties-under a mechanic’s lien when it has once attached, the statute must be strictly followed in securing the lien. McCune v. Snider, 9 O. C. D., 572, 575.

Section. 3184, Revised Statutes, provides that one who furnishes labor or material “by virtue of a contract, express or implied, with the owner, part owner, or lessee, of any interest in real estate, or the authorized agent of the owner, part owner, or lessee of any interest in real estate, shall have a lien * * * upon the interest, leasehold or otherwise, of the owner, part owner, or lessee in the lot of land, ’ ’ etc.

Section 3185 provides that such person shall file an affidavit “containing an itemized statement of the value and amount of such labor, machinery or material, * * * a copy of the contract, if it is in writing, a statement of the amount and times of payment to be made thereunder and a description of the land,” etc.

Reading these two sections together, it is manifest that the affidavit must show that the material was furnished to, and under a contract with, the owner of some interest in the land, in order to bind the interest of such owner.

This affidavit does not even hint that there was any contract between plaintiff and Ransford or that materials were furnished to Ransford. On the contrary, it specifically charges that the materials were furnished “to and) for the said Lester A. Cobb, trustee,” under and by virtue of an unwritten contract between said Harry Ransford, agent, who in making such contract was acting for said Lester A. Cobb, trustee, and plaintiff; that “said Lester A. Cobb, trustee, was, at the time said contract was entered into and said labor performed and said materials furnished, the owner of said buildings and that said-buildings are situated upon a certain lot of land owned by said Lester A. Cobb, trustee, -and in which said land said Harry Ransford has -or claims an interest. ’ ’

What interest Ransford had in the land, if any, does not appear and is immaterial; there is no claim of a contract with Ransford or of materials furnished to him.

The account attached to the affidavit does not show Ransford as a debtor, and we believe that to be necessary. Bender v. Steltinus, 19 Bull., 163, 164.

We hold that plaintiff, by reasons of the defects in the affidavit mentioned, has not perefeeted a lien against any interest of Ransford in said premises. Filberl v. Davis, 4 Bull., 629.

Has plaintiff established any lien against Cobb’s interest in said premises?

The affidavit is sufficient for the purpose, if the proof establishes the fact that Ransford was agent for Cobb in ordering the materials furnished.

The only proof tending to establish such agency is the contract between Cobb and Ransford in which it is provided that Cobb will execute a deed to second party (Ransford) “upon the erection of three (3) houses upon said lots by second party.” It will be noticed that Ransford does not agree to erect any houses.

We think the proper rule to be appliéd in such cases is laid' down by the Supreme Court of South Dakota in the case of Pinkerton v. Le Beau, 3 S. Dak., 440, where the authorities are collated and it is held:

“A stipulation in a contract for the sale of land, that it was understood between the parties that the vendee should erect a building upon the land, does not, of itself, constitute the vendee the agent of the vendor, withn the meaning of the mechanic’s lien law, nor authorize the vendee to subject the land of the vendor to a lien for material furnished for a building contracted for by such vendee.”

• But several eases are cited holding a contrary doctrine.

In the ease of Bohn Mfg. Co. v. Kountze, 30 Neb., 719, it appears that the vendor had agreed to advance the vendee the sum of $2,200 towards the erection of the building, and that •money was deposited in bank to be expended on cheeks of the vendee, countersigned by the vendor and accompanied by estimates of the architect.

In the ease of Henderson v. Connelly, 123 Ill., 98, there was ■an agreement that when the vendee had expended $325 in the erection of a suitable dwelling house upon the premises, the vendor would advance the further sum of $875 to aid in the completion thereof.

Frank Higley, for plaintiff.

Bemis, Zigelman & Calfee, for defendants.

In carrying out an agreement to advance money a vendor might very easily so conduct himself as to be in no position to deny his vendee’s agency.

The case of Hill v. Gill, 40 Minn., 441, can be distinguished from the case at bar only on the one point that in the ease cited the vendee “covenanted and contracted” to commence work upon a dwelling house and complete it within sixty days, while Ransford made no agreement to build a house.

But, considering all these cases irreconcilable with the conclusions we have arrived at, we think they all depend upon a theory of the equities of the case which does not obtain in Ohio. For instance, in the Minnesota case it is said: “She (the vendor) attempts to retain the property, much enhanced in value, through plantiff’s materials, without paying for the improvements. To permit her to do so would be an imposition.”

That could not be said in Ohio. The vendor in this state' can only claim the balance of the unpaid purchase price due 'him from the vendee; the mechanic has a lien on all value added to the premises by the vendee, over and above the amount due the vendor under the contract. The Mutual Aid Building & Loan Company v. Gashe, 56 O. S., 273.

Under the equitable doctrine established in Ohio by this case for the benefit of material men and mechanics dealing with the vendee of land in possession under an executory contract to convey it,, we think such material men are fully protected, and we are not disposed to enlarge the scope of the law of implied agency and thereby extend the benefits of the statute beyond the reasonable construction put upon it by the Supreme Court of this state in the case cited.

Finding that plaintiff failed to secure a lien upon any interest of Ransford in the premises and that he has failed to prove one against Cobb’s interest, the petition is dismissed.