author: Summers, J. Davis, J.,

text:
    Anderson v. The United Realty Co. et al.

      Removal of suit from state to federal court — Party procures withdrawal of petition — And prosecutes action in state court — Under agreement — Objection to jurisdiction cannot be made, when —Devise to son, and if he dies without lineal descendants,, etc., then over — Not sufficient to create estate in lineal descendants— Son takes a fee defeasible — Law of vuills.

    1. Upon the filing in a state court of-th'e requisite petition and bond for the removal of the suit to a federal court, the state court is divested of jurisdiction; but a party who procures the withdrawal of the .petition and bond, by the party who filed it, before any action in the federal court, and then dismisses his action in the state court as to the party who filed the petition for removal, and by agreement with the remaining parties prosecutes the suit in the state court, cannot be heard, after judgment against him, to assert that the jurisdiction of the state court had not been restored.

      2, Where, in a will, there is a devise to a son, and if he dies without lineal descendants, living at the time of his decease, then over, these words are not, by themselves, without assistance from other parts of the will, sufficient to create an estate by implication in the lineal descendants, but the son takes a fee defeasible upon his death without lineal descendants, living at the time of his decease, and in the event of lineal descendants living at the time of the son’s decease his fee becomes absolute and such descendants have no interest under the will as against his grantee.
    (No. 10689
    Decided November 10, 1908.)
    Error to the Circuit Court of Lucas county.
    The facts are stated in the opinion.

      Mr. Rhea P. Cary; Mr. C. A. Thatcher and Mr. C. PI. Trimble, for plaintiff in error.
    Under the provision of the will that “If either of my sons die without lineal descendants the one surviving- shall take his estate above bequeathed, and if the survivor die without lineal descendants, then” to his collateral relatives, the testator intended that if the survivor of the sons should die leaving lineal descendants they should take the remainder. Parish’s Heirs v. Ferris, 6 Ohio St., 563; Niles v. Gray, 12 Ohio St., 322; Shaw v. Hoard, 18 Ohio St., 228; Carter v. Reddish, 32 Ohio St., 1.
    Reading the will under consideration, in the light of this rule, the question is, What is the quantum and character of the estate which the testator intended that his children should take in the realty specifically devised to them? The English rule that a devise to A. and his heirs, followed by a devise over in case A. die without issue will be cut down to fee tail in A. and the word “heirs” construed as meaning issue, is owing to the fact that in that country the words “dying without issue” are construed as meaning an indefinite failure of issue. 2 Jar. on Wills, 301.
    In this state, however, it is well settled that the words “dying without issue,” import dying without issue living at the death of the prior devisee. Parish’s Heirs v. Ferris, 6 Ohio St., 563; Niles v. Gray, 12 Ohio St., 320.
    A very strong implication arises, that the testator intended by the words, “and to their heirs” (found in the habendum clause), to give to his children the estate of inheritance in fee simple in the premises devised, which should render them legally capable of controlling and disposing of it. Piatt v. Sinton, 37 Ohio St., 353; Collins v. Collins, 40 Ohio St., 353.
    Where, by one clause in the will, property is devised or bequeathed by words prima facie importing absolute estate, and by a subsequent clause is given in remainder to another person, the first devisee or legatee takes only a life estate and the limitation over is valid. Baxter v. Bowyer, 19 Ohio St., 490.
    In this case the fact that the testator had granted to the first taker a power to dispose of the estate, shows that he did not intend to vest a fee simple in the first taker, as in such case it was useless to mention the power of disposition, because that existed before. Therefore the grant of the power of disposition is an evidence that the first taker was to have but a life estate.
      Home v. Lippardt, 70 Ohio St., 261; Shaw v. Hoard, 18 Ohio St., 228.
    An executory devise or bequest cannot be prevented or destroyed by an alteration whatsoever in the estate, out of which or subsequently to which it is limited. The executory interest is wholly exempted from the power of the first devisee or taker. 4 Kent’s Com., 270.
    A valid executory devise cannot be defeated at the will and pleasure of the first taker. This is a settled principle. It cannot be barred by a common recovery, or by any other mode of alienation. Pells v. Brown, Cro. Jac., 590; Jackson v. Bull, 10 Johns., 19.
    Every executory devise is a perpetuity, as far as it goes. That is to say, it is an estate inalienable, though all mankind join in the conveyance. Scatterwood v. Edge, 1 Salk., 229; Jackson v. Robins, 16 Johns., 589; Burleigh v. Clough, 52 N. H., 273.
    It was held to be essential to a good, executory devise, that the first takers should have no power to dispose of the subject devised. If, therefore, the first taker had power by grant from the testator, to dispose of an executory devise, the power defeated the whole object of such devises, and they were held to make them ineffective, though the power was not executed.
    The will vested the estate in the first takers, that is the sons, in' general terms, without using words of inheritance sufficient to specifically and absolutely create a fee, and that it is evident that it was the intention of the testator that his collateral kindred should take in certain events in some capacity. The only way to construe the will so as to make it effectual as to them, is to give them remainders contingent upon his sons dying .without issue, and when we remember that the general rule is, that future interests will be construed, where possible as remainders rather than as executory devises, it seems to us there is no escape from the conclusion that such a construction must be put upon the will. If it is construed as creating contingent remainders in his collateral kindred, this necessarily implies a life estate in the first taker, with remainder to his sons or other lineal descendants.
    If only a life estate is granted, a power of disposition in the life tenant does not invalidate a remainder over. Kelley v. Meins, 135 Mass., 234; Larned v. Bridge, 17 Pick., 339; Burleigh v. Clough, 52 N. H., 273.

      Messrs. King, Tracy, Chapman & Welles; Mr. George A. Bassett; Mr. Oliver B. Snider; Mr. Rathbun Fuller; Mr. Elmer E. Davis; Messrs. Rhoades & Rhoades and Mr. Clayton W. Everett, for defendants in error.
    Where parties voluntarily and without objection submit their controversy to a court having jurisdiction of the subject-matter and the cause proceeds therein regularly to trial and final judgment, they will be held to have waived their right to object to the jurisdiction of that court, even though a petition and bond had been duly filed to remove the case from the state to the federal court. Forsythe v. Hammond, 166 U. S., 506; Estate of Crawford, 68 Ohio St., 58; Jones v.
      Booth, 38 Ohio St., 218; Collins v. Davis, 33 Ohio St., 567.
    We respectfully submit that upon the admitted facts, it is clear that the right to remove the action from the state to the federal jurisdiction, was effectually and for all time waived. Pollock v. Cohen, 32 Ohio St., 514.
    The doctrine announced by the Supreme Court of Ohio, in Pollock v. Cohen, 32 Ohio St., 514, that the right of removal is personal and may be waived, has been expressly announced by the United States Supreme Court as correct. Insurance Co. v. Morse, 87 U. S., 445; Barron v. Burnside, 121 U. S., 186.
    It has been held that the right may be waived by conduct as well as by stipulation. Bank v. Smith, 13 Blatchf., 225.
    Whatever rights a party may acquire upon the filing of the bond and petition, it could waive, and it certainly, under the circumstances of this case, must be considered as having waived them. A party could not go to trial upon the merits, take its chances upon the result, and afterward question the jurisdiction of the court. Insurance Co. v. Curtis, 32 Mich., 402.
    Under Ohio statutes and decisions a fee simple was devised to the sons of Henry Anderson subject to defeasance if they died without children. Section 5970, Revised Statutes.
    Under statutes similar to the above, decisions have been made to the effect that unless it clearly appears that a less estate was intended a fee simple will be presumed. May v. San Antonio,
      83 Tex., 503; Snyder v. Baer, 144 Pa. St., 278; Simonds v. Simonds, 168 Mass., 144; Harris v. Dyer, 18 R. L, 543.
    But the case most similar to the one at bar and to which we ask special attention is the case of Devecmon v. Shaw, 70 Md., 219.
    Where there is a devise in fee, with a provision in the will that in case the devisee should die without leaving any legitimate heirs of her body, then the estate should go over to persons named, the fee taken by the first devisee is determinable only on the contingency of her dying without leaving such heirs living at the time of her death. Lodge v. Darrow, 16 Ohio Dec., 120; Niles v. Gray, 12 Ohio St., 320; Piatt v. Sinton, 37 Ohio St, 353.
    We submit that the devise to the sons in the Anderson will comes strictly within Niles v. Gray, 12 Ohio St., 320, and Piatt v. Sinton, 37 Ohio St., 353. To the same effect are the following cases: Taylor v. Foster’s Admr., 17 Ohio St., 166; Collins v. Collins, 40 Ohio St., 353; Durfee v. McNeil, 58 Ohio St., 238.
    All of said five cases are authorities that such conditional limitations over do not show an intention to devise less than a defeasible fee to the primary devisee.
    Ever since Pells v. Brown, 3 Cro. Jac., 590, courts have almost uniformly refused to imply title in the issue on whose failure the limitation over must occur. Where the failure of issue and limitation over must occur, if at all, on the death of the first donee, all such limitations over have in Ohio been uniformly held to be definite failures of issue, and implied no title in any person; and if issue be then living' the first donee is held to have taken a fee and if none be then living then the estate is held to pass over by way of executory devise. Parish’s Heirs v. Ferris, 6 Ohio St., 563; Niles v. Gray, 12 Ohio St., 330.
    We call attention to the decision of the Circuit Court of Lucas County rendered in this- case. Anderson v. Realty Co., 9 C. C., N. S., 473.
    We submit that the express and absolute power given to each of the sons at the age of twenty-one years to dispose of his portion by will, is repugnant in law to the prior estate in power, the law being that a valid limitation over cannot be made tó depend upon such a contingency. Home v. Lippardt, 70 Ohio St., 261; Van Horne v. Campbell, 100 N. Y., 287.
    An absolute and uncontrolled power of disposition at the mere will, and for the sole purposes of the holder of the property, is of the very essence of absolute ownership, and where the testator has made such provision in favor of the first taker, there is strong reason for holding that he has relinquished all power to control or direct the further disposition of the property. James, Exr., v. Pruden, 14 Ohio St., 251.
    The law favors the vesting of estates, and in case a will contains apt words to dispose of the testator’s entire estate, that construction will be given to it. Stokes v. Weston, 142 N. Y., 433.
    Where a devise or bequest over is not dependent upon the death simply of the original beneficiary, but upon death without issue or without children, the death referred to, in the absence of anything in other portions of the will tending to show a contrary intent, will be considered as a death in the lifetime of the testator. Colby v. Doty, 158 N. Y., 323; Karker’s Appeal, 60 Pa. St., 141.
    The words “pay over” were construed in Clarke v. Clarke, 46 S. Car., 230.
    If real estate is devised to A. generally, without any qualification or condition, but with a proviso that in case of his death without will, the property shall go to B., the limitation over is void, and A. takes the entire estate in fee simple, unaffected by the proviso. Brewing Co. v. Dick, 13 Ohio Dec., 581.
    In addition to those already cited, we refer to some of the cases: Holmes v. Godson, 8 De Gex, M. & G., 152; Ross v. Ross, 1 Jacob & Walker, 154; Gillmer v. Daix, 141 Pa. St., 505; Jackson v. Robins, 16 Johns., 589; Campbell v. Beaumont, 91 N. Y., 466; Howard v. Carusi, 109 U. S., 725; Fisher v. Wister, 154 Pa. St., 65; Armstrong v. Kent, 21 N. J. L., 509; Karker’s Appeal, 60 Pa. St., 141; Van Horne v. Campbell, 100 N. Y., 287; Kelley v. Meins, 135 Mass., 231; Jackson v. Bull, 10 Johns., 19; Ide v. Ide, 5 Mass., 500; Sevier v. Brown, 32 Tenn., 112; Melson v. Cooper, 4 Leigh, 408; Gifford v. Choate, 100 Mass., 343; Hale v. Marsh, 100 Mass., 468; Ramsdell v. Ramsdell, 21 Me., 288; 4 Kent’s Com., 271.
    Since this court in Robbins v. Smith, 72 Ohio St., 1, held that the provision in a will directing that the estate bequeathed “shall not be turned over” to the devisees, but shall be invested for them, created only an estate for life in the body of the property, it would seem as though it must logically hold that an estate in fee simple in the first takers was created by the provision in the Anderson will directing that the estate shall be turned over to Anderson’s sons upon their reaching the age of twenty-one years, respectively, coupled with the provisions in said will for the determination of the trust thereby created when the sons should reach the age of twenty-five years.
    The word “heirs” is not necessary to pass a fee; any words showing intention to devise a fee simple are sufficient. Smith v. Berry, 8 Ohio, part 2, 366; Lessee of Thompson v. Hoops, 6 Ohio St., 480; Niles v. Gray, 12 Ohio St., 320; Piatt v. Sinton, 37 Ohio St., 353; Section 5970, Revised Statutes.
    The word “estate” used in a grant is declared to be the most general, significant, and operative, that can be used in a will, and according to all the cases, may embrace every degree and species of interest — it carries a fee from its established and legal import. Lambert v. Paine, 3 Cranch, 134; Jackson v. Robins, 16 Johns., 589; Abbott v. Essex Co., 18 How., 202; Countess of Bridgewater v. Duke of Bolton, 6 Modern, 106; Thornton v. Milquinne, 12 Ia., 549; Deering v. Tucker, 55 Me., 284; Backus v. Presbyterian Assn., 77 Md., 50.
    The word “property” used in this will in the devise to William clearly carries a fee by Ohio law. Niles v. Gray, 12 Ohio St., 320; Piatt v. Sinton, 37 Ohio St., 353; Robinson v. Randolph, 21 Fla., 629; Williams v. Kibler, 10 S. Car., 414;
      Soulard v. United States, 4 Peters, 511; Sloan v. Frothingham, 72 Ala., 589.
    The limitation over to the surviving son reads: “If either of my sons die without lineal descendants the one surviving shall take his estate above bequeathed.”
    If a life-estate only was devised this would have to mean, one surviving shall take his (life) estate, but to speak of the life-estate as existing after the death of the life-tenant is absurd; for the brother to take his dead brother’s “life-estate” would mean nothing, and the testator must have used the words without any sense.
    A definite failure of issue is, when a precise time is fixed by the will for the failure of issue, as in the case of a devise to A., if he dies without lawful issue living at the time of his death. An indefinite failure of issue is a proposition the very converse of the other, and means a failure of issue, whenever it shall happen, sooner or later, without any fixed, certain, or definite period, within which it must happen. It means the period when the issue, or descendants of the first taker, shall become extinct, and when there is no longer any issue of the issue of the grantee, without reference to any particular time or any particular event. 4 Kent’s Com., 274; Downing v. Wherrin, 19 N. H., 2; Vaughan v. Dickes, 20 Pa. St., 509; Watkins v. Quarles, 23 Ark., 179; Huxford v. Milligan, 50 Ind., 542.
    The Anderson will, in these clauses, provides for a definite failure of issue — there are three sets of expressions relative to the limitations over. Two of these at least provide for definite failure.

      The first expression is, “and if the survivor die without lineal descendants, then,” etc., stating where the property should go. By the old common law, and by that in many states, indefinite failure of issue is presumed, and this clause standing alone would be construed- to be indefinite. 17 Am. & Eng. Ency. Law (2 ed.), 558. Parish’s Heirs v. Ferris, 6 Ohio St., 563; Niles v. Gray, 12 Ohio St., 320; Piatt v. Sinton, 37 Ohio St., 353.
    But there is no need to resort to presumptions since the following clauses are perfectly clear.
    The second set of expressions show clear intention for definite failure:
    One-half (was to go) to my brother Peter, “the other half to such of my brothers and sisters as may be living at the time of the death of such surviving son. If my brother, Peter, be not living at the time of the death of my surviving son, so dying without lineal descendants, then the share he would have taken, if living, shall go to his children living at the time of the death of my said son, and if there be no children surviving, then the share shall go to my other brother and sisters surviving at the time of such decease of my son.”
    In these few lines the testator takes pains to specify four times that the time for the limitations over is at the death of the surviving son — hence is on definite failure of issue.
    The third set of expressions are the clearest of all, and no words could be used that would be clearer for definite failure of issue. No comment upon them is necessary.

      “I make the following explanation: The limitations over on the death of my surviving son without lineal descendants is intended to take effect if there be no lineal descendants living at the time of the decease of such son.”
    A limitation over after an indefinite failure of isstte cuts down the first devise in fee to an estate tail. Page on Wills, Section 593; 17 Am. A Eng. Ency. Law (2 ed.), 574, 575.
    But a limitation over after a' definite failure of issue simply adds to the previously given fee an executory devise over. The previously given fee simple becomes a fee subject to defeat upon the happening of the subsequent condition. Sometimes this is called a fee defeasible, a base fee, etc. Pells v. Brown, 3 Cro. Jac., 590; Porter v. Bradley, 3 Durn. & E., 143; Doe v. Frost, 3 Bar. & Ad., 555; Jordan v. Roach, 32 Miss., 481; De Wolf v. Middleton, 18 R. I., 810; Towman v. Dunlop, 18 Pa. St., 72; Daniel v. Thomson, 14 B. Mon., 662; Den v. Allaire, 20 N. J. L., 6; Page on Wills, Section 591; Niles v. Gray, 12 Ohio St., 320; Piatt v. Sinton, 37 Ohio St., 353.
    The following Ohio cases hold a fee subject to defeat is created by a subsequent provision for limitation over a failure of issue, but do not expressly state that the holding is because of definite failure of issue. Collins v. Collins, 40 Ohio St., 353; Durfee v. McNeil, 58 Ohio St., 238; Taylor v. Foster’s Admr., 17 Ohio St., 166; Martin v. Lapham, 38 Ohio St., 538; Lapham v. Martin, 33 Ohio St., 99; Smith v. Hawkins, 27 Ohio St., 371.
    This court has held that the holder of a defeasible fee may deed the same and that the grantee takes all the rights o'f the grantor; that is, he takes the fee defeasible upon the same condition that the grantor had it. Niles v. Gray, 12 Ohio St., 320; Piatt v. Sinton, 37 Ohio St., 353.
    When the only condition has passed and can never happen (as it has in case at bar), then the estate is freed from this condition and is a pure fee simple. This follows like a mathematical demonstration and the cases so hold. 2 Am. & Eng. Ency. Law (2 ed.), 368-370; Carter v. Reddish, 32 Ohio St., 1; Collins v. Collins, 40 Ohio St., 353; Niles v. Gray, 12 Ohio St., 320; Piatt v. Sinton, 37 Ohio St., 353.
    A devise to one and his heirs provided that, if the first taker should .die without lawful issue, the estate should go over to another, gives the first taker a fee defeasible upon his death without issue; and in case of his death with issue, such issue have no interest in the property devised as against grantees or devisees of the first taker. Page on Wills, Section 676, pages 797, 798.
    A first devise will not be reduced to a lesser estate by any words that are less clear than the original words of grant. Washbon v. Cope, 144 N. Y., 287; Collins v. Collins, 40 Ohio St., 364; Parker v. Parker’s Admr., 13 Ohio St., 95; Banzer v. Banzer, 156 N. Y., 429; Page on Wills, Section 574, page 666.
    No remainder can be limited after a first clear devise in fee as we have in the case at bar. Jackson v. Robins, 16 Johns., 589; 2 Blackstone, 164; 4 Kent’s Com., 200; 1 Tiffany on Real Property, 280; Anderson v. Messinger, 146 Fed. Rep., 929.
    The first devise to the sons is clearly and explicitly a devise in fee simple. Then follow the limitation over clauses and the explanatory clauses. The estate given the sons was not an absolute estate in fee simple unless the limitation 'over clauses are, for some reason, void. If the limitation over clauses are for any reason void then the estate remains, as first granted, an absolute estate in fee simple. Wilson v. Turner, 164 Ill., 398; 16 Cyc., 607.
    We may lay it down as an incontrovertible rule, that where an estate is given to a person generally, or indefinitely, with a power of disposition, it carries a fee; and the only exception to' the rule is where the testator gives to the first taker an estate for life only by cértain and express words. Jackson v. Robins, 16 Johns., 537; Mulvane v. Rude, 146 Ind., 476.
    , The first clear devise in fee will not be reduced to a life estate by a power given to defeat the limitations over,; but that the added power renders the limitations over void and leaves the estate a fee simple. Kelley v. Meins, 135 Mass., 231.
    The following cases all hold that where there is a first devise in fee; followed by a limitation over with a power given the first taker to defeat the limitation over by will; the limitation over is void and the estate remains a fee simple in the first taker. Brewing Co. v. Dick, 1 N. P., N. S., 592; Armstrong v. Kent, 21 N. J. L., 509; Fisher v. Wister, 154 Pa. St., 65; Gillmer v. Daix, 141 Pa. St., 505, Smith v. Starr, 31 Am. Dec., 498;
      Holmes v. Godson, 8 De Gex, M. & G., 152; Cuthbert v. Purrier, 1 Jacobs, (English), 415; Green v. Harvey, 1 Hare (English), 428; Jauretche v. Proctor, 48 Pa. St., 466.
   Summers, J.

In the Court of Common Pleas of Lucas county this was an action by Peter Anderson against several defendants to recover the possession of several city lots, or parcels of real estate in the city of Toledo.

The title of Peter Anderson to the lands in question depends upon the construction to be given to his grandfather, Henry Anderson’s will. Plenry Anderson, the grandfather, made his will on February 28, 1846, and died on the third day of April following. He left two children only, William born February 12, 1828, and James H. born June 25, 1831. William died in 1850 intestate, unmarried and without issue. James H. the other son, died in 1902, intestate and left surviving him as his only child, and only heir at law, the plain.tiff, Peter Anderson, who was born August 27, 1859, and he is the grandson and the only grandchild, and only living descendant of the said Henry Anderson.

The testator gave all of his property, both real and personal, to certain persons in trust, and the will then reads as follows:

“Item. It is my will that when my son William arrives at' the age of twenty-one years the trustees of the first and general trust shall deliver to him a settlement of the affairs of the trust, and if my debts are then paid, and as soon as that takes place, they shall put him in possession of one-half of my property, reserving thereout two-fifths parts of said moiety by valuation, which my said trustees shall hold in trust and properly invest and pay over to him at the age of twenty-five years. If my interest in the American Land Company be not brought into the general trust at the time William becomes twenty-one, but is brought in at any time before he arrives at twenty-five, so soon as brought in, two-fifths shall be deducted therefrom and invested and paid over to him at twenty-five, the other three-fifths he shall have, as soon as paid in. I find the above does not express my will in this: When I say two-fifths shall be deducted from the interest I may have in the land company for investment, and three-fifths to be paid to him, I mean two-fifths of a moiety shall be deducted and three-fifths of a moiety paid over.

“And it is my will that my said trustees hold and invest and pay over the remaining moiety of my estate to my son James at the respective periods of twenty-one and twenty-five years of age, being governed as to the amounts to be paid at each of the respective periods by the same rules and directions as are above laid down in the bequest to William, and to be governed in all other respects by the regulations laid down concerning the same.

“If either of my sons die without lineal descendants, the one surviving shall take his estate above bequeathed, and, if the survivor dies without lineal descendants, then one-half both of the decedent’s original portion, as well as one-half of the portion taken by survivorship, shall go to my brother Peter, the other half to such of my brothers and sisters as may be living at the time of the death of such surviving son. If my brother Peter be not living at the time, of the death of my surviving son, so dying without lineal descendants, then the share he would have taken, if living, shall go to his children living at the time of the decease of my said son, and if there be no children surviving, then the share shall go to my other brother and sisters surviving at the time of such decease of my son. I make the following explanation: The limitation over on the death of my surviving son without lineal descendants is intended to take effect if there be no lineal descendants living at the time of the decease of such son. Nothing in the foregoing will shall be construed as to deprive either of my sons disposiftg of their portions by will on their attaining the age of twenty-one years, respectively. The above limitations over shall give way to the provisions of such wills.”

This will was duly probated in Mississippi, and an authenticated copy of the will and of the probate thereof were thereafter duly filed in the Probate Court of Lucas County, Ohio, where the will was duly admitted to probate and record as a will from another state.

On April 7, 1860, James H. Anderson, the father of the plaintiff, and the then surviving son of the testator, executed and delivered to one Charles Butler a quitclaim deed of all the real estate involved in this action, which deed was duly signed, sealed, acknowledged and executed by him in the presence of two witnesses who signed the deed as such, and which deed was duly recorded in the Recorder’s Office of Lucas County, Ohio, on May 3, 1860.

The defendants derive their title from Charles Butler. In 1838 the land in controversy was owned in fee simple by one Edward Bissell, who then mortgaged it to Charles Butler to secure the payment of his bond for a large sum due in one year. In 1841 Butler assigned the bond and mortgage to Henry Anderson as collateral security for the payment of his note to Anderson, and, in default of payment, Anderson in 1843 filed his bill in chancery in the Court of Common Pleas of Lucas County, Ohio, to foreclose the Bissell mortgage. The land was hid in by Anderson at the master’s sale in 1844 and he received the deed therefor. Pie then entered into an agreement with Butler which in effect, so it is contended, made the land the property of Butler and vested the title in Anderson merely as security for the payment of Butler’s note to Anderson. Butler thereafter obtained quitclaim deeds from Bissell and from Anderson’s trustees and from William and James PI. Anderson, and it is also contended that the proof shows that the payments made by Butler to Henry Anderson and to his trustees discharged the note, but it is not necessary to narrate the facts in detail, for if the title was in James H. Anderson his quitclaim deed conveyed it to Butler, and it did not descend from James PL Anderson to his son, the plaintiff, and these facts become material only in the event the plaintiff took an estate in the land under his grandfather’s will. The facts are set nut in detail in the opinion of the circuit court, 9 C. C, N. S., 473.

The petition in this case was filed August 17, 1905. The defendants were not tenants in common, but each held a lot in severalty. Some of the defendants by answer objected to the petition on the ground that separate causes of action against several defendants were improperly joined, and on August 25, 1905, one - of the defendants, a corporation, filed its petition and bond for removal into the next circuit court of’ the United States to be held in the northern district of Ohio, western division. The petition for removal averred that the corporation was the owner and in exclusive possession of one of the lots, that it had no interest in any of the other lots and that none of the other defendants had any interest in • its lot, that the corporation was a citizen of Michigan, that plaintiff was a citizen of Tennessee, and that the controversy in said suit between the corporation and the plaintiff was a separable controversy, wholly between it and the plaintiff, relating to the ownership and right to possession of the real estate described as lot 332 in Port Lawrence Division, Toledo, Ohio, and the rents and profits to the same, and that the value of the real estate in controversy, exclusive of interest and costs, exceeded the sum of two thousand dollars. The transcript does not show any action by the court upon the petition for removal or upon the bond, but it does appear that on the sixth of November, 1905, the plaintiff dismissed his action, without prejudice, as to that defendant, and that in consideration thereof such defendant withdrew its petition for removal, and on the same date there is this docket entry, “Petition for removal withdrawn.” The action was dismissed also as to some other defendants. Thereafter, on January 2, 1906, the plaintiff and the remaining defendants entered into a stipulation that the defendants waived the misjoinder of causes of action in the plaintiffs petition and that all the parties consented and agreed to try together all of the causes of action set forth in the petition. Thereafter the action was tried in the court of common pleas and a verdict was directed for the defendants and each of them and the petition was dismissed. On July 14, 1906, the plaintiff filed a petition in error in the circuit court and assigned as his first ground of error, that the common pleas court lost jurisdiction of the action with the filing of the petition and bond for removal. Other errors are assigned. The circuit court affirmed the judgment of the court of common pleas and the case is brought here on error to reverse the judgments of the lower courts.

Upon the filing' of such petition and bond the federal statute makes it the duty of the state court to accept them and to proceed no further in the suit. Thereupon the state court is divested of jurisdiction of the suit and its subsequent orders are coram non judiee, unless its jurisdiction be restored. Railroad Company v. Koontz, 104 U. S., 5; Steamship Company v. Tugman, 106 U. S., 118; Madisonville Traction Company v. St. Bernard Mining Company, 196 U. S., 239. In this case we think the jurisdiction was restored as to the remaining defendants, by the withdrawal of the petition for removal by the defendant that filed it and the dismissal by the plaintiff of his action against that defendant, before any action upon the petition and bond had been taken in either court. The state court had jurisdiction of the subject matter and of the parties, but under the Federal Constitution and laws it was the privilege of one of the defendants to have the suit transferred to a federal court, and when he filed the requisite petition and bond the jurisdiction of the state court was suspended. The federal court could with the consent of the parties restore the jurisdiction by remanding the suit, and we see no good reason why the jurisdiction of the state court may not be restored by the withdrawal of the petition for removal before any action upon it has been taken.

In the federal court, to which the case was sought to be removed, on the ground of an alleged separate cause of action against one of the defendants, it would be, as a matter of course, remanded to the state court upon the entry of a discontinuance as to him (Texas Transportation Co. v. Seeligson, Admr., 122 U. S., 519), or upon a settlement of the controversy between him and the plaintiff. Torrence v. Shedd, 144 U. S., 527.

There was merely an irregularity in the mode of restoring the jurisdiction, of which the plaintiff will not be heard to complain. In Garrozi v. Dastas, 204 U. S., 64-72, Mr. Justice White says: “The assertion of the Want of jurisdiction in the court below rests, however, not upon a denial of power in that court to have entertained the controversy if the ,suit had been originally brought there, but upon the contention that, as a defendant other than the husband was a resident and citizen of Porto Rico, the cause was improperly removed from the local court. And the proposition goes to the extent of insisting that such want of jurisdiction may be asserted by the person who procured the removal, who resisted the effort to remand, and when the want of jurisdiction is only suggested after trial and final decree.” And the conclusion was that even though the removal was irregular, the party who caused the removal could not be heard, after judgment against him, to assert that the United States court was wanting in jurisdiction solely on the ground that the case was erroneously removed. And if' the conclusion in Baltimore & Ohio Rd. Co. v. Fulton, Admr., 59 Ohio St., 575, that where a suit is removed to the federal court and then dismissed without trial, no subsequent suit upon the same cause of action can properly be brought in the state court, is not correct, as seems to be the opinion in Gassman v. Jarvis, 100 Fed. Rep., 146 (and see note to Young v. Southern Bell Teleph. & Teleg. Company, 7 L. R. A., N. S., 501, where the cases are collected; 75 S. Car., 326), then, in effect, the withdrawal of the petition and bond for removal and the trial of the suit in the state court by agreement of all the parties was the prosecution of a new suit upon the same cause of action.

The remaining question, what estate did the plaintiff take under the will, would not, perhaps, have consumed much time, for the leading textbooks and the cases are in accord that he took none, had not the circuit court of appeals reached a different conclusion in Anderson v. Messinger, 146 Fed. Rep., 929, where the same will was construed. It is there held that James H. Anderson, the surviving son, took a life-estate, with the remainder to his son, Peter Anderson, the plaintiff. In Underhill on the Law on Wills, Section 468, it is said: “Where real or personal property is given to" a person absolutely, but if he should die without leaving children then over, the primary devisee takes a common-law fee conditional, which is defeasible on his death without leaving children, though the children, if he leave any, take no estate as purchasers under the will by implication. If the first taker shall die leaving children him surviving, by which event the remainder is defeated, they will take by descent from their parent and not as purchasers under the will. Lie has an estate in fee with full power of disposal, and the only effect of mentioning the' children in the will is to indicate the contingency upon which his estate in fee is to be defeated.”

At-common law it was settled, says Mr. Jarman (Jarman on Wills, *521, 6th Edition), that a devise to a person indefinitely, with a limitation over in case he died without issue, or words of similar import, conferred an estate tail on such person, and on the ulterior devisee a remainder in fee expectant on the' estate tail in such prior devisee, on the ground that, by postponing the ulterior devise until the failure of the issue of the prior devisee, the testator afforded an irresistible inference that he intended that the estate to be taken by the prior devisee under the indefinite devise should be of such a measure and duration as to fill up the chasm in the disposition, and prevent the failure’ of the ulterior devise, which, as an ex-ecutory devise to take effect on the general failure of issue, would be void for remoteness.

And in like case, where there was an express estate for life in the first taker, he was held to take an estate tail. In Stanley v. Lennar d, 1 Eden’s Chancery Reports, 87-95, the Lord Keeper said: “Where a man, by his will, makes one tenant for life, with remainder to one, two, three, four, five, etc., of the iss.ue of the tenant for life, and then, for want of issue of tenant for life, limits the estate over, this will be an estate tail in the first taker for life by necessary implication; and this, because of the word ‘then’ before the limitation over, which, though sometimes an adverb of time, yet is sometimes a word of relation, and signifies as much as ‘in such case,’ and must have this effect, that upon the first, second, third, fourth, fifth, etc., limitations failing, the remainder-man could not take it, because of the words, for want of issue; and therefore, unless the tenant for life was construed to have an estate tail, it would descend, in the meantime, to the heir at law, because the contingency on which the remainder-man was to take had not happened. But as- the testator certainly intended to dispose of his whole estate, it has been construed a necessary implication, that the tenant for life should take an estate tail to carry the testator’s intent into execution. But where there is an express estate for life, the court never enlarges this estate for the sake of the tenant for life himself, but merely for the sake of other persons who are intended to take by the will. To this it is objected that you will introduce an estate tail, which . will give the party an opportunity of defeating the limitations over; but this proves too much; for so it happened in all the cases that have been cited at the bar; for you cannot supply the- defect and omission in the will without giving the tenant for life power to destroy the remainders over.”

This result follows from interpreting the words “die without issue” or words of similar import to mean an indefinite failure of issue. But in 1837 an act was passed (1 Viet., c. 26, s. 28, 29), by which it was provided that a devise of real estate without any words of limitation shall be construed to pass the fee simple, or other the whole estate and interest which the testator had power to dispose of by the will, and “that in any devise or bequest of real or personal estate the words ‘die without issue/ or ‘die without living issue/ or ‘have no issue/ or any other words which may import either a want or failure of issue of any person in his lifetime or at the time of his death, or an indefinite failure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such person, and not an indefinite failure of his issue, unless a contrary intention shall appear by the will.” And so Mr. Jarman says (*525), “Under this clause, coupled with the preceding section, which makes a devise confer an estate in fee without words of inheritance, it will generally happen, in cases in which, according to the old law, the prior devisee would have been tenant in tail, by the effect of words devising over the property on the failure of his issue, that he will, under the new rule of construction, take an estate in fee simple, subject to an executory devise in the event of his dying without leaving issue at his death.” And then speaking of the advantages attending the present mode of construction, he says (*523), “Secondly, that by excluding an implication of an estate tail in the person whose issue is so referred to, where he takes an estate under the will, or Avhere he or the express devisee happens to be the heir at larv of the testator, the new construction has the effect of exempting the interest of the ulterior devisee from its liability to be defeated or destroyed by the act of the prior deAÚsee; the result being, that instead of the ulterior devisee having (as formerly) a remainder in fee expectant on an estate tail in such prior devisee (which, of course, the latter might have barred by a disentailing assurance), he takes by executory devise engrafted on a preceding fee simple, to arise on the event of the first devisee dying without leaving issue at his death, the estate of such prior devisee being absolute in the alternative event.”

Now, the pertinency of this statement that, in such a case under the new rule of construction, the prior devisee takes an estate in fee simple, subject to an executory devise in the event of his dying without leaving issue at his death, is apparent when it is stated that in this state the common law rule never was adopted, but was rejected and the modern rule was adopted. Parish’s Heirs v. Ferris et al., 6 Ohio St., 563; Niles et al. v. Gray et al., 12 Ohio St., 320.

Where there is a devise to A. for life and in case he should die without issue to B., it has been urged in case A. dies leaving issue, the issue take by implication on the ground that it would be absurd in the testator to make the estate of the ulterior devisee depend on the contingency of there not being issue, and yet, in the alternative event to give the property neither to A. himself nor to such issue, but to leave it to devolve to the heir at law or residuary devisee. Mr. Jarman says (*522), “There is, however, no authority for implying an estate in the issue living at the death, and the contrary conclusion is supported by Monypenny v. Dering, where it is argued that a devise over in default of issue of A., a tenant for life, to some only of whose issue an estate was expressly given, showed that the intention must have been that not some only but all the issue should take; but Sir J. Wigram, V. C, 'said, that, admitting such to be the intention, it furnished no sufficient ground for supplying estates by purchase to the omitted issue. He had asked for but did not get any authority for such a proposition.” It may be added that there is no such absurdity, for in cases of bequests for life, with gift over in default of children, it is held that the children do not take by implication.

In Jarman on Wills (*524), it is said: “As no implied estate to the issue arises (as we have seen) from a limitation over in case of the prior devisee or legatee dying without leaving issue at his decease, it should seem that there is the same absence of authorized ground for implying a gift to children from a similar limitation over in default of these objects.

“Accordingly, in several cases it has been considered that a bequest to a person, and if he shall die without having children, or without leaving children (whi@h means without having had a child born, or without leaving a child living at his decease), then over, does not raise an implied gift in the children; but the parent takes an absolute interest, defeasible on his dying without having had, or without leaving, a child as the case may be. The rejection of the implication in such a case is not (as already pointed out) productive of any absurdity; for it supposes the testator, by making the interest of the legatee indefeasible on his having or leaving a child, to intend that if there are children he shall have the means of'providing for them.

“And even where the language of the will necessarily confines the interest of the parent to his life, the children will not generally be held to take by implication; it is extremely probable that the testator intended- a benefit to them; but si voluit non dixit."

Before the making of this will an act was passed (March 3, 1834, 1 Curwen, 145, now Section 5970, Revised Statutes), which declared that in any will thereafter made, a devise of lands shall be construed to be a fee simple; “and the devisee shall take, all the estate which the deviser had in the property or thing divested, unless it appears by express words the manifest intent that a lesser estate was intended.” And before the passage of this act it had been decided by this court that words of inheritance are not necessary in a will to pass an estate in fee simple. So that Henry Anderson, by the direction in his will to his trustees to put his son William, when he arrived at the age of twenty-one years, in possession of one-half of his property, excepting two-fifths part of said moiety, which they shall pay over to him at the age of twenty-five years, and b}r a similar direction as to his son James, vested in them a fee simple title of all the estate he had* in real property, unless it appears by express words or manifest intent that a les'ser estate was intended. There are no express words, unless the son died without lineal descendants living at the time of his decease, which was not the event at the decease of the surviving son James. But it is contended that by making the limitation over contingent upon the death of the son without lineal descendants, living at the time of his decease, the testator manifested an intention that the son, in the event he died with lineal descendants living at the time of his decease, should take only an estate for life and that the lineal descendants should take a remainder. The answer to this is that it is settled, as already shown, that the limitation over in the event of non-existence of lineal descendants does not of itself imply a devise to the lineal descendants. The alternative of the devise over is an indefeasible estate in the son. To say that the testator must have intended the grandchildren to take is merely conjecture. The testator may have supposed that the son’s children would inherit the son’s property, or that the son would give it to them; this is the most that can be implied from his mention of them, and if he acted upon that belief and, after the devise of his property to the sons, attempted .to provide only for the contingency of their death without surviving lineal descendants, then not only can it not be said that he intended to devise it to grandchildren, but a reason for his not doing so is apparent.

In this will not only is there nothing from which to imply an estate in grandchildren but such an implication is precluded by the explanations of the testator. He says: “Nothing in the foregoing will shall be construed as to deprive either of my sons disposing of their portions by will on their attaining the age of twenty-one years, respectively. The above limitations over shall give way to the provision of such wills.”

This is not the gift to the sons of a power to dispose of the estate by will. In the contemplation of the testator that power they already had upon attaining the age of twenty-one years for he says they are not to be deprived, of it. If it be said that this explanation merely qualifies the limitation over, then it does not help the plaintiff, and if taken literally, then the sons upon attaining the age of twenty-one years could dispose of their estates by will even though they had children, which is inconsistent with an intention of the testator to make the grandchildren objects of his bounty. The evident intention of the testator was to give his sons absolute estates to be divested only in case they died without issue living at the time of their decease and without having disposed of the estate by will.

In Dowling v. Dowling, L. R., 1 Ch. App., 615, the testator directed that the interest from his residuary estate should be divided half yearly between his four sons, “and at the decease of either without lawful issue such share to revert to the remainder then living, or their child or children.” Stuart, V. C, held that the sons took only a life estate, and that the children took a remainder by implication, but on appeal (Dowling v. Dowling, 1 Ch. App. Ca., 612), his decree was overruled and it was held, “That each of the four sons took an absolute interest in his share subject to be divested in case of his dying without leaving issue : and that there was no gift by implication to the children of any who might die leaving issue.” In the opinion, Turner, L. J., says (615)', “There is, therefore, in my opinion, an absolute gift to the sons; but this absolute gift is subject to this condition, that upon the death of either of them without issue, the share is to revert to the remainder then living or their child or children. It appears to me, upon the construction of the whole will, that the children were not to take any interest as against their parents. If the parents are out of the w^ay, then the children are to take in their place; but so long as there are parents the children are to take nothing-. The testator thought that in that case he had done enough for them, for the parents might provide for their own children.”

In re Rawlins’ Trusts, L. R., 45 Ch. Div., 299, it is held, “Where, in a will, there is a gift to A. for life, with a gift over ‘on the death of A. without leaving children,’ those words are not, by themselves, without assistance from other parts of the will, sufficient to create a gift by implicatibn to the children.”

This case went on appeal to the House of Lords where it was affirmed, under the name of Scale v. Rawlins, (1892) A. C., 342. There it was contended that the construction below led to an absurdity, and that either the niece took an absolute interest in feé simple in the houses, subject to defeasance if she left no children, or there was an implied gift to the children. Lord Halsbury, L. C, says: “It is manifest that taking either alternative proposition put forward by the appellants, this House, if it is called upon to give that effect to the instrument, must put words into the will in order to do it. The thing has not been done; and I am not aware of any authority which would lead your Lordships to come to the conclusion that, because the testator had at some time or other the intention in his mind to give this property to the person in question, you are justified in saying that he has done so by the instrument which he has executed.”

Again he says: “Then it is said that he intended to make a gift to the children. Again I say that he does not do so. I cannot say that he had not the intention, but all I can say is that he has not expressed it, and your Lordships cannot put in words simply because you may have some suspicion that in making his testamentary disposition that was the intention in his mind.”

In Doe, ex dem. Barnfield et al. v. Wetton, 2 Bosanquet & Puller, 324, there was a devise to S. S., her heirs and assigns forever; but if she shall happen to die leaving no child or children lawful issue of her body living at the time of her death, then to F. B. and his heirs, and it was held that the devise - in fee to S. S. was not restrained by the subsequent words to an estate tail, and that the devise over to F. B. was a good executory devise. In the opinion, Lord Eldon, Ch. J., says: “It has been argued in this case, that it was manifestly the testator’s intention, that the children and grandchildren of S. Saunders should be benefited. But however that may be, the question is, Whether the testator intended, that the children and grandchildren should be benefited by this will, or by some disposition to be made by S. Saunders, if she had any children living at the time of her death, the estate being given to her in fee, she would have abundant power to provide both for children and grand-children. Nothing, however, is given to them by this will; they are merely named in the description of the contingency on which the estate is to go over.”

In Den v. Snitcher, 14 N. J. L., 2 Green, 53, where there was a devise to a son and if he should die without issue, then at his decease, over, Hornblower, C. J., says (59) : “It appears to me hardly possible that any intelligent mind, unembarrassed by technical rules and legal refinement, can entertain a doubt upon the plain reading of this will, that the testator intended his son Samuel should have the whole of the plantation in fee simple, in case he had issue, and that at all events, he should be the absolute and unconditional owner of one-half of it. Fie did no1- intend to give the estate to Samuel’s issue: but he intended to give it to Samuel, if he had issue.”

Again he says (60), referring to the statute of that state providing that a devise without the word “heirs” shall convey an estate in fee simple: “Let us then enquire, First, Did Joseph Copner devise to his son Samuel, any lands, etc., without using the words ‘heirs and assigns?’ He certainly did; and if he had stopped there, the whole plantation, under the influence of the act of Assembly, would have passed, in fee simple, to Samuel, the devisee.

“Secondly. Has the testator used any expressions to shew that he intended to give Samuel ‘only an estate for life,’ in all the lands devised to him? Or, to change the form of the interrogatory, has the testator used any expressions to shew, that he did not intend, that Samuel should have a fee simple, in any part of the lands devised to him? I consider these questions of exactly the same import, for, since the act has declared that a devise to A., without words of perpetuity or inheritance, is a devise in fee. simple, we must presume the testator used the words understandingly, and so intended to give the land in fee simple, unless he has used some expressions inconsistent with such intention, or qualifying the general gift, and shewing that he did not mean to give the devisee either the whole, or any part of the land in fee simple.”

In Kinsella v. Caffrey, 11 Irish Ch. Rep., 154, the master of the rolls after reviewing a number of cases says: “I apprehend, therefore, that the authorities may be classed under three heads: First, where there is an indefinite bequest to the parent, and, if he die without having or leaving children, to B. In that case, it is clear that the children do not take any interest by implication. Secondly, if there is a bequest to the parent for life, and, if he die without having or leaving children, to B.; if the parent dies leaving children,, they are not entitled by implication.' Thirdly, if however, in a case such as I have last mentioned, there are matters on the face of the will to raise an inference in favour of the children, the Court is at liberty to consider these circumstances in connection with the bequest over, in the event of the parent dying without having or leaving children, although such bequest over, by itself, is not sufficient to justify the Court inferring a gift in favour of the children.” These rules of construction are expressly approved In re Rawlins’ Trusts, supra.

The case of Shazv and Campbell v. Hoard et al., 18 Ohio St., 227, supports the contention of plaintiff, but it is contrary to the current of authorities and appears to have been disposed of without reference to any decisions and upon the conjecture that the testator supposed the property would descend to the children of the wife and daughter, and that this was sufficient to give it to them by implication. The case was decided in 1868, long after the making of the Anderson will, and so cannot be insisted upon as controlling the decision in this case. It is in conflict with other well considered decisions of this court. In Niles et al. v. Gray et al., 12 Ohio St., 320, where the testator gave real estate to his daughter, and provided that if she died without any legitimate heir, her part of the real estate should go to his eldest son, and the daughter had children and conveyed away the land, it was held, in a suit to quiet title by the grantees against the children, and in which the children claimed that the mother took only a life estate and they took a fee simple, that the mother took an estate in fee simple subject to be determined by the contingency of her dying without issue living at the time of her death, on the happening of which, the estate would pass over to the eldest son by way of executory devise. This case is followed and approved in cases decided subsequently to Shaw and Campbell v. Hoard. The judgment is affirmed.

Judgment affirmed.

Price, C. J., Shauck and Spear, JJ., concur.

Davis, J.,

But I waive further elucidation of this proposition because from my point of view the question as to the nature of the estate devised by this will is merely academic. It is a matter of indifference whether it be a life estate or a determinable fee; because in either case the only power of disposition apparently intended by the testator, is by will, as provided in this clause: “Nothing in the foregoing will shall be construed as to deprive either of my sons disposing of their portions by will on their attaining the age of twenty-one years respectively. The above limitations over shall give way to the provisions of such wills.” That is to say, the testator gives to' his sons the power of appointment by will and except in that way only, the property devised cannot be diverted from the family line prescribed by the testator. Whether each of the sons took an estate for life with a contingent remainder over or a fee simple determinable on the happening of the contingency, he could not defeat the devolution ‘ of the property within the family, as prescribed by the testator, except by appointment in a will. I will not discuss this proposition further than to say that this clause of the will stands out as prominent as the Washington Monument and it cannot be ignored in any fair construction of the will.

The sons of the testator never executed the power of appointment by will. Charles Butler, from whom the defendants in error claim title, by a course of procedure which is, to say the least, very suspicious, ■ obtained from one of them who had succeeded to the rights of the other a quitclaim deed for a consideration of “one dollar and other considerations.” This deed, as I think I have shown, he had no power to make, even if the transaction was free from fraud. Butler also, at or about the same time, procured from the executors of Henry Anderson a quitclaim upon a like expressed consideration in which it is recited that: “It being understood that the above described premises were conveyed to Henry Anderson in fee but held by him in his lifetime as a mortgage to secure the payment of a certain sum of money due from Charles Butler and Henry Anderson, which fact, after his death, was duly acknowledged under seal by William Anderson and James H. Anderson, his only heirs at law,” etc.

As I construe the will, neither- the sons of the testator nor his executors and trustees had power to divert the estate by these deeds; and I am constrained to believe that they executed the deeds under mistake and misinformation as to both the law and the facts.

I will not unnecessarily consume space by making any argument of my own to show that not a remnant of title, legal or equitable, remained in Butler after Anderson bought the property at the master commissioner’s sale, even after the agreement between Anderson and Butler on October 4, 1844. For brevity’s sake I refer to. the opinon in Anderson v. Messinger, by Severens, J., 146 Fed. Rep., 929. I might add something to that, but it would be fruitless.


source: Caselaw Access Project

author: Crew, J.

license: Public Domain

text:
    The State of Ohio v. Turnbaugh.

      Trial for burglary — Variance betiveen- indictment and evidence — No ground for acquittal, when — Section 7216, Revised Statutes — Indictment describes building as store-house• — Evidence as living-room — Criminal law.

    1. On the trial of an indictment charging the defendant with the crime of burglary, a variance between an allegation of said indictment and the evidence offered in support of it, in the name or description of the building alleged to have been broken and entered, is not ground for an acquittal of the defendant, unless such variance is material to the merits of the case, or prejudicial to the defendant. Section 7216, Revised Statutes.
    2. Where the allegation in an indictment is, that the accused maliciously and forcibly broke and entered the storehouse of B, and the evidence offered in support of such allegation establishes the fact that he thus broke and entered a certain room the property of B, built for, and by him occupied and used exclusively as a storehouse; which room adjoined another compartment or room in the same building, occupied by B and family as a living room, the two compartments however being separated by a permanent partition and the only means of communication between them being through a door in said partition which was kept locked at night, and which on the night of the burglary was shown to have been securely locked and fastened, the variance, if any, between the averment of said indictment and the proof, is not sufficient ground for an acquittal of the defendant.
    (No. 11398
    Decided November 10, 1908.)
    Exceptions by Prosecuting Attorney to decision of the Court of Common Pleas of Guernsey county.
    At the May term, 1908, of the Court of Common Pleas of Guernsey county, the defendant, Earl Turnbaugh, was, by the grand jury . of said county, indicted for the crime of burglary and larceny. Said indictment, omitting the formal parts thereof, charged “that Earl Turnbaugh, late of said county, on the 4th day of December, in the year of our Lord one thousand nine hum dred and seven, at the county óf Guernsey aforesaid, in the night season of the same day, to-wit: about the hour of eleven o’clock at night, in the county of Guernsey aforesaid, into a certain storehouse of one George Butts, there situate, did unlawfully, maliciously and forcibly break and enter with intent then and there and thereby the personal property of the said George Butts in the said store-house then and there being, unlawfully to steal, take and carry away, and money of the value of twelve dollars ($12.00) of the personal property of the said George Butts in said storehouse then and there being found, then and there unlawfully did steal, take and carry away.” It being admitted in this case that the statement made by the prosecuting attorney in his brief touching the location, character, etc., of the building alleged to have been broken and entered, is a correct statement of the facts as proved by the state on the trial, we may for the purposes of the present inquiry adopt that statement, which is as follows: “The evidence showed the building to be situated on the corner of Harris avenue and Second street, Cambridge, Ohio. That there is no entrance to the building on. Harris avenue. That from Second street there are three entrances, — one into the north room which adjoins Harris avenue, in which room George Butts and his family reside; one into the grocery room south of and adjoining the living room; one into the other grocery room on the south, being the south part of. the building, each of said grocery rooms extending back the full extent of the building. The house as originally constructed, did not include the grocery room on the south, this south room being built about two years ago as an addition, and for the express purpose of being used as a meat and grocery room, in connection with the adjoining grocery room on the north, which said south room was connected with the other grocery room by means of an open archway about seven feet wide and reaching to the ceiling, and said two rooms were used as the grocery store of George Butts.
    “There is a permanent partition between the grocery rooms and the living-room, extending from the floor to the ceiling, except there is a communicating door about ten feet from the rear of the storeroom, leading to the living-room, which communicating door was kept locked at night, and was locked on the night of the burglary herein. The building as it stood at the time of the burglary was as long on Harris avenue as it was wide on Second street, and besides the entrance or doorway to each of the storerooms from Second street, there was a door into the rear of the north storeroom from the out-, side. There was also a window on the south side of the south storeroom opposite the archway above mentioned, and it was through this last named opening or window that the burglar broke and entered, this south room into which he first entered, being the room built expressly for use as a store.

      “The burglar passed from the south room through the open archway into the other grocery room, and it was in the north grocery room, near the archway, where the money was found. There was no way of entering the living-room or dwelling-house proper from the storerooms, except through the communicating door, and that door was securely locked. The burglar did not enter, or attempt to break or enter, the living-room or dwelling-house proper.”
    On the trial, at the conclusion of the state’s evidence, counsel for the defendant, Turnbaugh, .moved the court to direct the jury to return a verdict of not .guilty and to discharge the accused, because of a claimed variance between the allegations of the indictment and the proof offered by the state, in this, to-wit: that the defendant was charged in said indictment with breaking and entering a storehouse, whereas the evidence, it was claimed, showed that the building broken and entered was not a storehouse, but a dwelling-house. Said motion was sustained by the court and the jury was directed- to, and did, return a verdict of not guilty, whereupon the court discharged the accused from custody. To all of which the state by the prosecuting attorney duly excepted. * The present proceeding is prosecuted to obtain the decision of this court as'to the law to govern in similar cases.

      Mr. Charles S. Sheppard, prosecuting attorney, for plaintiff in error.
    A room in a building may be a storehouse. Bauer v. State, 25 Ohio St., 70) Commonwealth
      v. Whalen, 131 Mass., 419; Section 16, N. Y. Burglary Act; Section 503, N. Y. Penal Code; Quinn v. People, 71 N. Y., 561; Moore v. People, 47 Mich., 639.
    The use determines the character of the structure. Ratekin v. State, 26 Ohio St., 420; Barnett v. State, 38 Ohio St., 7; Thalls v. State, 21 Ohio Ohio St., 233.
    Variance, if any, not prejudicial. Walters v. State, 39 Ohio St., 216; Section 7216, Revised Statutes.
    A variance is not regarded as material, unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense. Abbott’s Crim. Trial Brief, 583; State v. Buechler, 57 Ohio St., 95; Lytle v. State, 31 Ohio St., 196; Tarbox v. State, 38 Ohio St., 581; Mulrooney v. State, 26 Ohio St., 326; Mead v. State, 26 Ohio St., 505; Mitchell v. State, 42 Ohio St., 383.

      Mr. John F. Stockdale, for defendant in error.
    That there is a difference between the term storehouse and storeroom, we have but to examine the cases of Hagar v. State, 35 Ohio St., 268; State v. Williams, 90 N. Car., 724; Quinn v. People, 71 N. Y., 561; State v. Potts, 75 N. Car., 129; Hughes on Crim. Law & Pro., Section 703.
    The court will find the same rule has been adopted by the Supreme Court of the State of Georgia, in Ashton v. State, 68 Ga., 25, and again by the Supreme Court of Michigan, in the case of People v. Dupree, 98 Mich., 26.
   Crew, J.

While the objection raised by the defendant on the trial of this case in the court of common pleas, and relied upon by him in this court, namely: that there is a material variance between the allegations of the indictment and the proof offered by the state in support thereof, might perhaps have been properly sustained under the technical and rigorous rule of the common law, as formerly applied in criminal prosecutions, such objection, upon the undisputed facts in the present case, is without merit, and cannot avail the defendant as ground for acquittal, under the modern and more reasonable rule now almost universally recognized by the courts, and in many of the states declared by statute, that a variance is not to be regarded as material unless it is such as might prejudice or mislead the defense, or might expose the accused to the danger of twice being put in jeopardy for the same offense. In modern practice much of the strictness that formerly obtained in criminal proceedings under the rule of the common law, as to proof of matters of mere description, has been done away with, as tending to embarrass and defeat, rather than promote, the administration of public justice. In harmony with this modern rule, which, while it preserves and protects the substantial rights of the accused, disregards such matters of variance as are not material to the merits of the case or prejudicial to the defendant, the general assembly of the State of Ohio, by Section 7216 of our Code of Criminal Procedure has enacted that: “When on the trial of an indictment there appears to be any variance between the statement in such indictment and the evidence offered in proof thereof, * * * in the name or description of any matter or thing therein named or described, such variance shall not be deemed ground for an acquittal of the defendant, unless the court before which the trial is had find that such variance is material to the merits of the case, or may be prejudicial to the defendant.” The manifest purpose, as well as the positive effect of this statute, was to modify or change the strict rule of the common law which made fatal any variance between the allegations of the indictment, as to matters of description, and the proof offered in support thereof. In Lytle v. The State, 31 Ohio St., 196, Gilmore, J., in discussing the effect of the above provision of our Criminal Code, says: “This abrogates, in our state, the rule of evidence on the subject of variance, in matters of description, between the allegation and proof. Instead of looking to the rules of evidence to ascertain whether there .is a variance between the allegations of the indictment and the evidence offered, the court now looks at the case as it stands before it; and if there are variances between the allegations and the proof offered, the defendant, for that reason alone, must not be acquitted, unless, in the opinion of the court, the variance is material or may be prejudicial to the defendant. The opinion of the court, in this respect, is now substituted for the former rule of evidence on the subject.” And in The State v. Buechler, 57 Ohio St., 95, it was held that the decision of the trial judge on the question of the materiality of the variance, is not conclusive, but that such decision may be reviewed by this court on error, or upon exceptions presented by the prosecuting attorney. When we consider, in the present case, that the character and proper designation of the place or structure alleged to have been burglariously entered, must be ascertained and determined from the nature of the use to which it was appropriated at the time of the commission of the alleged offense, — Thalls v. The State, 21 Ohio St., 233, — it would seem reasonably certain that such structure was not improperly or inappropriately designated in the indictment as a “storehouse.” But if it be conceded in this case that there is a variance between the allegations of the indictment and the proof offered by the state in support thereof, in the name or description of the building entered, such variance, under the facts and circumstances appearing of record, was neither material nor prejudicial, and could not therefore, because of the provisions of Section 7216, Revised Statutes, furnish ground for the acquittal of the defendant.

Exceptions sustained.

Price, C. J., Si-iaucic, Summers, Spear and Davis, JJ., concur.


author: Shauck, J.

text:
    Coghlin v. Coghlin et al.

      Contest of will — Evidence that page of will was removed and torn— No proof of revocation — Evidence that testator later regarded instrument as will — Admissible.
    1. In the contest of the validity of a will which has been admitted to probate, the ground of contest being that the testator in - his life time had destroyed the will with the intention of revoking it, the allegation that the will was revoked is not sustained by evidence showing that the testator removed from the instrument and tore one of its several pages leaving the will otherwise intact and evincing an intention to preserve it.
    2. In such case, for the purpose of showing the intent with which the page had been removed, it is competent to show that after it has been restored the testator regarded the instrument as his will. Behrens v. Behrens, 47 Ohio St., 323, approved and followed.
    (No. 10698
    Decided November 10, 1908.)
    Error to the Circuit Court of Lucas county.
    Ella S. Coghlin brought suit in the court of common pleas to contest the validity of the last will and testament of Dennis Coghlin. Issues having been joined the followed facts were shown upon the trial: On the 28th of July, 1893, Dennis Coghlin executed his last will and testament, and on the 17th of June, 1896, he . executed a codicil thereto. The instrument consisted of eight pages,' typewritten on one side of the sheets of paper. In the autumn of 1898 he and one of his sons were sitting in his library when the father, having spent about twenty minutes in examining his will, carefully tore the last leaf but one from its place, tore the detached leaf from top to bottom and the pieces crosswise, threw the pieces into the waste-basket, and leaving the will lying on his table left the house. His act was attended by no expression whatever. Before the father left the house the son recovered the pieces of the torn leaf and took them, with the rest of the will, to another room and gave them to his - mother. The torn page contained the eleventh item which related to family councils, the twelfth which provided for the appointment of executors and their compensation, the thirteenth which revoked former wills, and the fourteenth which gave a legacy to a beneficiary therein named. The testatum and attestation clauses were upon the last page which remained attached to the residue of the will and was undisturbed. After the will and the torn pieces of the separated leaf were delivered to the testator’s wife, the pieces were rearranged in their original connection and secured by adhesive strips pasted on the back of the page. The page thus restored was re-attached to the will in its original position and the whole was delivered to the testator’s attorney. Thereafter, as was shown by the testimony of the attorney, he and the testator had conversations about the will, having the instrument as restored before them. The conversations related chiefly, if not wholly, to the item concerning the executors and their compensation with which the testator was not entirety satisfied. A codicil to change it was discussed and drawn, but the testator apparently being undecided in the matter never executed it. This testimony of the attorney was admitted over the objection of the plaintiff. The material portions of the charge were as follows:

      “1. The statute of this state provides that a will may be revoked by the testator tearing it with the intention of revoking it. No particular amount of tearing is required — but the intention to revoke the will must exist. Any tearing, if the intent to revoke the will exists, is sufficient to satisfy the requirements of the statute. And if the jury find by a preponderance of the evidence that Dennis Coghlin tore his will with the intention of revoking it, their verdict should be that the will offered in this case is not his last will.

      “2. In order to find that Dennis Coghlin revoked his will the jury must find from a preponderance of the evidence that he tore it with the intention at the time to revoke it. If he intended to revoke it at the time of the tearing it was then and there finally revoked and no subsequent change of intention on his part to recognize or treat it as his will could have the effect to restore it.
    “And if the jury find that he intended to revoke it at the time of the tearing, then the verdict must be that it is not his last will, notwithstanding the jury also find that at a later date he regarded or treated it as his last will and supposed that it was his last will. ‘
    “The jury in considering the intention of the testator concerning the act in question, have the right to take into consideration, his acts and statements with reference to any of the particular clauses on the page in question, either before the tearing thereof or after, and also have the right and it is their duty to consider as bearing on the question of intent, the fact, if they so find from the evidence, that the testator saw the will with the torn clauses inserted and pasted in where they originally were, and considered the document as his will and had under consideration the question of revoking one of said torn clatises by a new codicil.
    “But the jury are instructed that such facts are to be considered only as bearing upon the intention of the testator at the time the tearing was done.”
    In the court of common pleas the verdict and judgment were, that the paper writing which had been admitted to probate was the last will and testament of Dennis Coghlin. The judgmént was affirmed in the circuit court.

      Messrs Whitlock, Milroy & Mallow and Messrs. Smith & Beckwith, for plaintiff in error, cited and commented upon the following authorities :

      Giffin v. Brooks, Exr., 3 C. C., 110, 48 Ohio St., 211; Behrens v. Behrens, 47 Ohio St., 323; Throckmorton v. Holt, 180 U. S., 552; In re Ladd, 18 N. W. Rep., 734; In re Valentine, 67 N. W. Rep., 12; Waterman v. Whitney, 11 N. Y., 157; Johnson’s Will, 40 Conn., 587; Comstock v. Hadlyme, etc., 8 Conn., 244; Hayes v. West, 37 Ind., 21; McDonald v. McDonald, 142 Ind., 55; Dickie v. Carter, 45 Ill., 376; In re Page, 118 Ill., 576; Lipphard v. Humphrey, 209 U. S., 264; In re Kennedy, 167 N. Y., 163; Burbank’s Will, 104 App. Div., 312, 185 N. Y., 559; Flowers v. Flowers, 85 S. W. Rep., 242; Appeal of Spencer, 77 Conn., 638; Boylan v. Meeker, 28 N. I. L., 274; Walton v. Kendricks, 122 Mo., 504; Couch v. Eastham, 27 W. Va., 796; LaRue v. Lee, 60 S. E. Rep., 388; Wells v. Wells, 144 Mo., 198; Gordon's Case, 50 N. J. Eq., 397; Lane v. Moore, 151 Mass., 87; Kimsey v. Allison, 120 Ga., 87; Sugden v. Lord St. Leonards, L. R., 1 Pro. Div., 154; Woodward v. Goulstone, H. L., L. R. App., (1886), 469; Atkinson v. Morris, L. R., Pro. Div., (1897), 40; Section 5953, Revised Statutes.

      Messrs. Hamilton & Kirby, for defendants in error, cited and commented upon the following authorities:
    30 Am. & Eng. Ency. Law, 640; Goods of Maley, L. R, Pro. Div., Vol. 12, 134; Wells v. Wells, 4 T. B. Mon. (Ky.), 152; Giffin v. Brooks, 48 Ohio St., 211; Behrens v. Behrens, 47 Ohio St., 323; Page on Wills, Sec. 450; Durant v. Ashmore, 2 Rich. Law (S. C.), 192; Southworth v. Adams, 11 Biss. (U. S.) 256; In re Valentine, 67 N. W. Rep., 12; Will of Ladd, 60 Wis., 187; Collagan v. Burns, 57 Me., 465; Lawyer v. Smith, 8 Mich., 412; Patterson v. Hickey, 32 Ga., 156; Reel v. Reel, 1 Hawks (N. C.), 248; Law v. Law, 83 Ala., 432; Pickens v. Davis, 134 Mass., 252; McElroy v. Phink, 76 S. W. Rep., 753; McDonald v. McDonald, 142 Ind., 55.
   Shauck, J.

The general rule for determining whether the will was revoked or not is found in Section 5953, Revised Statutes. Its related provision is as follows: “A will shall be revoked by the testator tearing, canceling, obliterating, or destroying the same with the intention of revoking it by the testator himself, or by some person in his presence, or by his direction.” Counsel for the plaintiff narrow the inquiry by the following clear statement of their views:

We recognize fully that there can be no partial revocation. And if a portion only of a will be erased or canceled with intent to revoke that part only but not with intent to revoke the whole will, the act will be ineffective and if the canceled part can be restored or is legible the will should be admitted, including the canceled portion, as a valid part of the will. “The ultimate question therefore is — Did Dennis Coghlin intend to revoke only that part of the will which he tore up and threw in the waste-basket? Or did he intend to revoke the will as a whole? But in considering the pertinency of Mr. Waite’s testimony it becomes necessary to consider the relation of the part torn out to the balance of the will.”

It is true that in preceding items of the will there were provisions for the vesting of title to property of the testator in the executors named in the twelfth item in trust for beneficiaries named. But for two reasons we think the relation of those parts of the will to the twelfth item do not justify the conclusion that the removal of the single page denoted an intention to destroy or revoke the entire instrument. The intention of the testator would be suggested by what he understood the effect of his act to be. We should probably err if we imputed to him the understanding of counsel upon that subject. Furthermore, if we should assume that he regarded, not merely the physical; but as well the legal, relation of the several parts of the instrument, it would be quite natural to suppose that he understood that the condition which would result from his failure to name persons to act as executors and trustees would not differ from that which would result from the death of those named or their failure to qualify, and that the court would make the appointment necessary to the execution of the trusts which earlier provisions of the will had created.

Counsel insist that the trial court erred in admitting evidence of the conversations between the testator and his counsel when the will, with its restored page, was before them and the subject considered was a codicil to change the provisions respecting executors. In support of this objection it is urged that a will once destroyed, with the intention of revoking it, cannot be rehabilitated by its subsequent recognition by the testator as his last will and testament. The soundness of this proposition is not challenged but it does not seem to reach the disputed point. The jury were clearly instructed that a will once destroyed with the intention of revoking it, cannot be thus restored, and that the testimony in question was admitted for the sole purpose of indicating the intention with which the testator removed and tore the single page. That the evidence was competent for the purpose stated in the instruction cannot be regarded as a matter of doubt since the decision of this court in Behrens v. Behrens, 47 Ohio St., 323. It is true that in that case a will which had been known to exist had been lost or destroyed utterly. It had been admitted to probate as a lost will, the probate court having found that it was in existence after the testator’s death. The question for determination upon the trial to contest its validity was whether it had been lost, or destroyed with the intention of revoking it. That a will might be lost with the intention of revoking it, is not contemplated by the statute. It was not contemplated by the court. Indeed it is not conceivable. This court, having concluded that when a will known to have been in existence, cannot be found after the testator’s death, there is a presumption that he destroyed it with the intention of revoking it, held, that the presumption might be strengthened by proving the testator’s declaration of an intention to destroy it. The subject is so fully considered and the authorities so carefully discussed in that case that no further comment upon the subject seems necessary. This case is not distinguishable from that upon any ground that is now material. But if the evidence respecting the testator’s declaration to his counsel had been excluded, the conclusion reached by the courts below would séem to follow a consideration of the undisputed testimony showing the conduct of the testator at the time of the detachment and tearing of the separate page. An intention to revoke the entire instrument would be quite inconsistent with the obvious care which he took to separate the single page from the body of the instrument, and in the preservation of all of the instrument except the detached page. His conduct manifested as clearly and by the same token an intention to preserve the body of the instrument as to destroy the separated page.

Judgment affirmed.

Price, C. J., Crew, Summers, Spear and Davis, JJ., concur.