source: Caselaw Access Project

author: Summers, J.

license: Public Domain

text:
    The Widows’ Home v. Lippardt.

      Will — Granting widow property in fee simple with power to sell— Remainder, if any — To he distributed, etc. — Gives power of deed against second devisees — Interpretation of wills.

    A will reading, “I give and bequeath to my beloved wife all my estate, both real and personal, of which I am now possesséd or shall afterwards come into my possession or under my control by deed or otherwise in fee simple, with power to sell or dispose of it as she may see fit; that after the death of my wife, if there is anything remaining of my personal or real estate it shall be distributed in the following manner, to-wit:” gives the widow power to convey the fee of the whole or any part of the real estate, and a deed making such a conveyance, good as against the widow, is good against the second devisees.
    (No. 8317
    Decided June 21, 1904.)
    Error to the Circuit Court of Hamilton county.
    The record title of this case is, The Bodmann German Protestant Widows’ Home, plaintiff in error, v. Louisa Lippardt and John L. Duerr, defendants in error.
    The action was commenced in the court of common pleas of Hamilton county by the defendants in error to recover specific real property in Cincinnati.
    John Zeltner died testate in November, 1885, seized of the property; his will was admitted to probate in the same year, and so much of it as is necessary to the determination of the questions presented is as follows:

      '' Second. I give and'bequeath to my beloved wife, Maria Zeltner, all my estate, both real and personal, of which I am now possessed or shall afterwards .come into my possession .or under my control,. by deed or otherwise in fee simple, with power to sell or dispose of it as she may see fit; that after the death of my wife, if there is anything remaining of my personal or real estate, it shall be distributed in the following manner, to-wit: To Louisa Lippardt, wife of William Lippardt, and John L. Duerr shall receive in equal shares subject to this condition, that John Behringer, Stephen, John, George and Margaret Zeltner, children of George Zeltner, shall receive the sum of $100 apiece. I do hereby nominate and appoint my beloved wife, Mary Zeltner, executrix of this my last will and testament, hereby authorizing .and empowering her to compromise, adjust, release and discharge in such manner, upon such terms or conditions as she may see proper, and deeds to purchasers, to execute, acknowledge and deliver in fee simple.”
    On April 15, 1890, his widow, Maria Zeltner, conveyed the property in question to the plaintiff in error for a recited consideration of “one hundred dollars and other valuable considerations.” Contemporaneously an agreement was executed between her and the plaintiff in error, reciting that whereas the deed was made in consideration of her being admitted as an inmate of said Widows’ Home, therefore it was agreed between the parties that she should have the exclusive right to the enjoyment of the rent of the premises after payment of taxes, and if the property were sold during her lifetime by the plaintiff in error, she should receive for her own use, $2,000 out of the proceeds.
    On June 4, 1892, the present defendants in error brought an action against the present plaintiff in error in the superior court of Cincinnati to set aside this deed. Subsequently, on July 1,1892, the petition of plaintiffs in that action was dismissed without prejudice and upon cross petition of defendant, present plaintiff in error, its title was quieted as to any claim of the then plaintiffs under any deeds executed by Maria Zeltner on or after August 4, 1890.
    On June 14,1892, Maria Zeltner brought an action against the plaintiff in error in the same court, to set aside the deed to it; in this action a decree was entered on January 27, 1894, finding the issues joined for the defendant, and that the property had been conveyed by Maria Zeltner to it for a valuable consideration with the contemporaneous agreement above referred to; and decreeing that Maria Zeltner should have the use of the premises during her lifetime or $2,000 out of the proceeds if sold by the plaintiff in error during that time, and dismissing the petition at the costs of the plaintiff.
    Maria Zeltner died December 17, 1898, an inmate of the Home conducted by the plaintiff in error.
    The foregoing facts appear in the finding of facts made by the court of common pleas. In that court judgment was given for the plaintiffs, defendants in error; the judgment was affirmed by the circuit court, and error is prosecuted to this court.
    Counsel for defendants in error states the case as follows:
    John Zeltner died in 1885, testate, leaving Mary Zeltner his widow. They had no children, but they became the foster parents of John L. Duerr and his sister Louisa, the defendants in error. John and Louisa were orphan children, and had been taken by Zeltner and "wife into their family when quite young. They were brought up and educated by Zeltner and lived with him as members of his family. Zeltner in his life time, and his widow for some time after his death, kept a saloon and restaurant, and the two children assisted them in this while it was so carried on. Louisa got married to Lippardt, and then lived with her husband. John got married and continued to live with Zeltner, and after Zeltner 7s death, with his widow, upon the premises in question, until April 15, 1890, when the widow executed the deed in question, and went to the Widows’ Home, leaving John and his family to live upon the premises. When the widow entered the Home she was seventy-four years old. The by-laws of the Home provide for an admission fee of $100, and that if the widow so admitted has property, she must give one-half thereof to the Home. She was at the Home hut a few months, when she left it and returned to the premises in question and. lived there with her foster son John and his family. On August 4, 1890, the widow executed a deed for the same premises to John Duerr and his sister, Louisa Lippardt, hut the same was never recorded. In October, 1890, John and his sister Louisa brought suit to set aside the deed to the Home, upon the ground that the widow was not of sound mind and memory and had been unduly influenced to make the same, which suit, on their own motion, was on July 1, 1892, dismissed without prejudice to their rights under the will of John Zeltner, deceased. Upon a cross petition filed in said case by the Home, its title was quieted against any claim they might have under the deed of August 4, 1890, or any other deed executed since. On June 14, 1892, the widow entered suit against the Home to set aside the deed so made by her to the Home, upon the ground of want of consideration; that she was of old age, had not sufficient mental capacity, and was ignorant of the nature of the same, and alleging that the premises were worth $8,000. To this action the Home filed the following answer :
    “Now comes the defendant and for answer to the plaintiff’s petition admits that plaintiff was the owner of the premises described in the petition prior to April 15,1890, and that the defendant is a corporation for charitable objects under the laws of Ohio. Defendant by way of answer further says, that in consideration of $100 and other good and valuable considerations, the plaintiff conveyed by a good and sufficient deed the said premises to the defendant on July 19,1890, and that the defendant is the owner of the same, subject, however, to a life estate therein for the plaintiff as by the terms of said purchase was agreed. Defendant further answering denies each and every other allegation of plaintiff’s petition.”
    The suit on. January 27, 1894, resulted in a decree against her. The defendants in error were not parties to said suit.
    While thus away from the Home, the widow, in March, 1892, sold an improved piece of the Zeltner property to one Ulmschneider for $1,200; and in March 1894, she deeded an unimproved, and only remaining piece of property, to John Duerr, one of the defendants in error, the consideration being one dollar and other considerations. She afterwards (sometime in 1894) went back to the Home, and remained there until her death, which occurred on December 17,1898, aged eighty-two years.
    He concedes that these facts do not all appear of record, but says they were used in argument in the courts below and tbat this court should bave tbe benefit of them.
    In tbe determination of tbe case no consideration was given any fact tbat does not appear of record, and counsel’s statement is quoted only because it makes it easier to understand tbe statement of tbe case.

      Mr. William Worthington and Mr. Gustav Tafel, for plaintiff in error.
    It is considered tbat tbe premises in question were conveyed by Maria Zeltner to tbe plaintiff in error. And consequently it must be also conceded tbat tbe defendants in error bave no title, and no right to recover, unless they bave shown either tbat she could not convey an interest for a term exceeding her own life, or else tbat this deed was void because in excess of her powers of conveyance.
    "We contend tbat neither claim can be sustained because :
    1. Tbe will gives express authority to Maria Zeltner to convey in fee simple without limitation; so tbat her deed would be effective to pass such a title even if her estate were one for life only.
    2. If it were legally possible to imply any limitation upon tbe power of Maria Zeltner to sell and convey, tbe premises, such implication would not extend to forbidding a sale for her own support; such was tbe consideration in this case entirely, or at least in part; and therefore tbe deed can not be absolutely void so as to be treated as a nullity in an action of ejectment brought by tbe devisees over, whatever relief might be given to them in an action in equity.
    3. Tbe will gives to Maria Zeltner an estate in fee simple, which of itself implies authority to convey in fee simple.
    It will be seen that there are three distinct provisions :
    1. A gift of the entire estate to the wife, stated in express words to be a gift in fee simple.
    2. An express grant of unlimited and absolute power to sell or dispose of the property as she sees fit.
    3. A gift over after her death of anything remaining if such there be, i. e., of whatever may remain unsold or undisposed of by her.
    Each of these provisions points to one and the same conclusion, and that is that the wife’s power during life was absolutely without any limitation. She could not only “sell,” but she eould dispose of as she saw fit; and these powers are not in the conjunctive, but in the disjunctive, connected by the word “or.” Neither of them is limited by the statement of any object or purpose to be subserved by the disposition, but both are absolute and unlimited, and are for any purpose which his wife “may see fit.” Hence she could not only sell, which implies the receipt by her of a consideration, but she could dispose of in any other manner, and for any other purpose; and consequently she could give the property away either by act inter vivos or by last will and testament. The expectations of the defendants in error must be satisfied with that part of the property which the wife did not see fit to dispose of. Her sales and her dispositions were to be absolutely unquestionable by them; for it is only “if there is anything remaining” after her death that there can be any provision under this will for Louisa Lippardt and John L. Duerr, and that remaining thing could not come into existence, much less be ascertained, until all of her dispositions, with or without consideration, whether becoming effective during her life or only at her death, had been satisfied. Remaining after her death leaves undisturbed what takes effect at her death. The devise over is not positive, assuming that there will be something for it to act upon, but clearly hypothetical and contingent, 11 if there is anything remaining, it shall be distributed.”
    Consequently, if she saw fit during her life to make this deed to plaintiff in error, the property so conveyed to the plaintiff in error can not be part of the provision the testator wished to go to defendants in error, unless her deed can be set aside for Some reason which could be urged by her. But the decree in superior court of Cincinnati, No. 46,231, settles this question so far as she was concerned, and consequently settles it also for the defendants in error.
    If we assume that the testator’s final intention was to give his widow an estate in fee simple then of course the words stating she has power “to sell or dispose of it as she may see fit” are merely descriptive and are surplusage, because' such power, is connoted by and embraced in the fee simple estate; and in that event necessarily her conveyance is good, and our case is made out. The assumption that he did not intend to give her a fee simple estate consequently presupposes that the power expressly granted was a power to do something which she could not have done under the estate given her. By virtue of her estate she would convey in her own right whatever interest the will gave her; by virtue of the power she would convey in the right of the testator an interest that was not given to her.
    As to the scope of this power, it is absolutely without limitation expressed; nor are there any words in the will from which a limitation can be implied. The only clause which can be pointed to as even suggesting a limitation is that giving over to the defendants in error whatever may remain; but even that does not suggest any limitation upon the power, but is simply a disposal of the residuum after the full exercise of the power.
    It was settled long ago that the donee of such a power may exercise it in his own favor. What he may sell or give to another he may take to himself. Barford v. Street, 16 Beav., 135; Johnson v. Johnson, 51 Ohio St., 446; Enyart v. Keever, 52 Ohio St., 631; Greene v. Greene, 57 Ohio St., 628; Sugden on Powers, ch. 2, sec. 1 (1 Am. ed.), 99; Roberts v. Lewis, 153 U. S., 367; Giles v. Little, 104 U. S., 291; Little v. Giles, 25 Neb., 321; Bishop v. Remple, 11 Ohio St., 277.
    This latter decision (Bishop v. Remple) has never heretofore been qualified in any manner. The facts there are identical with those in the case at bar in the essential particulars of there being an unqualified power of sale given to the first taker; a gift over to be taken from what may remain after the death of the first taker, a sale by the first taker, and an action of ejectment by the person entitled to the property if that sale were unauthorized. It therefore controls the case at bar, and, unless it is. to be overruled, requires that the judgments below should be reversed and judgment entered here for the plaintiff in error. But there is no reason why the case should be overruled. It is sound in principle and in accordance with the weight of authority. As an indication of this we add without further comment a few of the cases in which similar rulings have been made: Burbank v. Sweeney, 161 Mass., 490; Hardy v. Sanborn, 172 Mass., 405; Kent v. Morrison, 153 Mass., 137; McMillan v. Deering, 139 Ind., 70; Lewis v. Palmer, 46 Conn., 454; Forsythe v. Forsythe, 108 Pa., 129; Doran v. Piper, 164 Pa., 430; Hovey v. Walbank, 100 Ca., 192.
    If Maria Zeltner’s power of sale be limited, yet her deed is not-void. Such a sale as the widow Zeltner made was within the plain terms of the conjectured limitation upon the power. It was a sale for her support. And on the showing here made it could not be set aside in equity by the devisees over any more than by Maria Zeltner, much less treated as void in an action at law.
    But even if the consideration were inadequate, the same conclusions would follow so long as it was valuable; and the express finding is that there was a. valuable consideration; the agreement to receive Maria Zeltner as an inmate, aside from anything else,, is itself a valuable consideration, and this agreement was performed; for it appears that she was still an inmate at the time of her death, more than eight years after this conveyance. "We take the proposition to be too plain to need citation of authority that a deed can not be set aside for inadequacy of consideration, or for fraud where there was an actual consideration, without repayment or tender of the consideration received, that is to say, without putting the parties in statu quo. And from this has arisen the rule that relief in such cases must ordinarily he sought in equity, and not at law. Viant v. Cooper, 76 L. T. N. S., 768; Tophan v. Duke of Portland, 1 DeG. J. & S., 570; Rowley v. Rowley, Kay, 242; Hewitt v. Dacre, 2 Keen, 622; New v. Potts, 55 Ga., 420; Beddoes v. Pugh, 26 Beav., 407.
    We submit, therefore, that if the plaintiffs below have any rights in the premises, they are not to reeqyer the land in specie, as if the deed were void, but. to set aside the deed by suit in equity, and for this reason that the judgment below should be reversed, and judgment entered here for the defendant below,, the plaintiff in error.
    No ease previously decided by this court presents, the features involved in the case at bar.
    We shall consider at this point all the cases, except. Bishop v. Remple, 11 Ohio St., 277, which has been already noted, bearing upon wills having a similarity to that here involved, without reference to the form in which relief was sought, or the question raised.
    (Counsel then cited and commented upon the following cases — Reporter) :

      Howe v. Fuller, 19 Ohio, 51; Pruden v. Pruden, 14 Ohio St., 251; Baxter v. Bowyer, 19 Ohio St., 490; Smith v. Bell, 6 Pet., 68; Potter v. Couch, 141 U. S., 296; Roberts v. Lewis, 153 U. S., 367; Davis v. Boggs, 20 Ohio St., 550; Stableton v. Ellison, 21 Ohio St., 527; Huston v. Craighead, 23 Ohio St., 198; Cassidy v. Hynton, 44 Ohio St., 530; Posegate v. South, 46 Ohio St., 391; Min Young v. Min Young, 47 Ohio St., 501; Johnson v. Johnson, 51 Ohio St., 446; Enyart v. Keever, 52 Ohio St., 631; Greene v. Greene, 57 Ohio St., 628; Jauretche v. Proctor, 48 Pa., 466; Evans v. Smith, 166 Pa., 625; Sherratt v. Bentley, 2 Myl. & K., 149; Theobald on Wills (5 ed.), 455; Page on Wills, sec. 684; Huber v. Free, 57 Ohio St., 662; 5 Circ. Dec., 537; 12 C. C. R., 333; Campbell v. Greenawalt, 67 Ohio St., 520.
    A review of the decisions above given shows that in the past ten years this general subject has been at least five times before the court, beginning with the case of Johnson v. Johnson, 51 Ohio St., 446. From these decisions and from the judgments rendered in the unreported eases we presume the court have reached the following conclusions:
    1. The intent of a testator must be gathered from his whole will.
    2. The nature of an estate given by a will is to be determined not only by the words in which that estate is given, but by any expression there may be as to the powers that may be exercised by the donee of that estate.
    3. If the powers expressly given are not so broad as the estate, and there is a gift over of what is not properly disposed of under the powers, this signifies that the estate actually given was not what the words describing it connote, for the reason either that the testator made a mistake in using those words, or that he changed his mind after using them; and that the powers are not inherent in, but additional to, the estate actually given; and a gift over of what may not be disposed of under the powers is a valid gift of the remainder.

    4. And from these we draw the corollary that if the powers given are the same as those which would inhere in the estate as described, then a gift over of what may remain is not a gift of a remainder, unless the estate given is itself capable of sustaining the remainder. In other words, where an estate is both given and described by words which connote a fee simple and that only, it can not be cut down, into a lesser estate by the fact that there is a gift over of what the taker of that estate may not in his lifetime dispose of. This is not only the logical inference from the preceding propositions, but it is admitted, arguendo by the judges delivering the opinions in Pruden v. Pruden, 14 Ohio St., 251; Baxter v. Bowyer, 19 Ohio St., 490; Davis v. Boggs, 20 Ohio St., 550, and Johnson v. Johnson, 51 Ohio St., 446.
    "While the purpose for making a will is to express the intention of the testator, and the object of construing it is to ascertain that intent, yet this must be gathered from the words he has used. The inquiry is not what thought did he wish to express, but what thought has he expressed. Schouler on Wills, sec. 460; 1 Redfield on Wills, 433; Brooks v. Lea, 76 Va., 386; Pack v. Shanklin, 43 W. Va., 304; Hancock’s Appeal, 112 Pa., 541; Sturgis v. Work, 122 Ind., 134; Brower v. Hunt, 18 Ohio St., 311.
    When that thought is ascertained, it will be given effect unless it runs counter to some rule of law. But in so far as it does run counter, it is simply ineffective ; it can not be replaced by some other thought; which it may be conjectured he might have expressed had he known that this one would be pronounced nugatory. State v. Dombaugh, 20 Ohio St., 167; Terry v. Smith, 42 N. J. Eq., 504; Pearkes v. Moseley, 5 App. Cas., 714; Gray on the Rule against Perpetuities, secs. 629-633.
    Among the other things which testators can not do is to create new kinds of estates. They may give any kind.of estate which the law recognizes, but they can. not shear it of any of the attributes or qualities the law affixed to it. Anderson v. Cary, 36 Ohio St., 506.
    A fee simple comprises all the qualities and attributes of ownership. There can be nothing left to follow after it. It may be displaced by an executory devise, but it can not be succeeded. Where it is followed by an'executory devise the fee simple is not absolute, but terminable or base, and all grants made by its owner fall with it. Pells v. Brown, Cro. Jac., 590; Niles v. Gray, 12 Ohio St., 320; Taylor v. Foster’s Admr., 17 Ohio St., 166; Van Horne v. Campbell, 100 N. Y., 287.
    While it is true that the later expression in a will controls the earlier where they are absolutely inconsistent (Young v. McIntire, 3 Ohio, 498; Sherratt v. Bentley, 2 Myl. & K., 149), it is also true that this never occurs unless such absolute inconsistency appears. Consequently, an estate clearly given in one part of a will can not be cut down or affected by anything in a latter part which is not an equally clear and inconsistent disposition of the same property. Parker v. Parker, 13 Ohio St., 95; Collins v. Collins, 40 Ohio St., 353; Thornhill v. Hall, 2 Cl. & Fin., 22; Banzer v. Banzer, 156 N. Y., 429; Jarman’s 12th Rule, 2 Jarman on Wills (4 Eng. ed.), 842; Page on Wills, sec. 574; 1 Underhill on Wills, sec. 358.
    Consequently when certain realty is clearly devised in fee simple, it is not affected by any subsequent devise, unless equally clear and of the same property or some specified part of it. If the subsequent devise be such, it will pro tanto revoke the earlier one; and if it be postponed in possession, it will reduce the earlier one to a lesser estate terminable when the latter one becomes possessory; the former will be reduced from a fee simple to a fee tail, or an estate for life or years, as the case may be, and the latter will take effect as a remainder. Sherratt v. Bentley, 2 Myl. & K., 149.
    But if a second devise be not of the same property or of some specified part of it, but merely of what may remain of it at some future time after giving effect to all dispositions made in the meantime by the first devisee, the second devise is void. It either attempts to create in the first devisee a new kind of estate, subject to limitations not recognized by the law, or to give away what has already been given to him; and neither attempt can be successful.
    We have already cited expressions by this court on this subject, which we refer to without repetition. See, also, Attorney General v. Hall, Fitzg., 304; W. Kel., 13; Gulliver v. Vaux, 8 DeG. M. & G., 167; Ross v. Ross, 1 J. & W., 154a; Holmes v. Godson, 8 DeG. M. & G., 152; Ide v. Ide, 5 Mass., 500; Jackson v. Bull, 10 Johns., 19; Jackson v. Robins, 15 Johns., 169; 16 Id., 537; Van Horne v. Campbell, 100 N. Y., 287; Howard v. Carusi, 109 U. S., 725; Rona v. Meier, 47 Ia., 607; Alden v. Johnson, 63 Ia., 125; Trustees v. Harris, 62 Conn., 93; Joslin v. Rhoades, 150 Mass., 301; Gilchrist v. Empfield, 194 Pa., 397; Page on Wills, secs. 575, 684; Underhill on Wills, secs. 358, 689.
    The word “heirs” is not necessary to pass a fee in a will. Section 5970, Ohio Revised Statutes; Smith v. Berry, 8 Ohio, 365; Piatt v. Sinton, 37 Ohio St., 353.
    Hence, where a devise to A, without words of limitation, which we shall hereafter style a general devise, is followed by a gift over of what A at his death may not have disposed of, the devise over is void, for the reasons already stated where the devise was to “A and his heirs,” or to “A in fee simple,” if there be nothing else in the context leading to a different conclusion. See authorities cited in that connection and also Shaw v. Ford, L. R. 7 Ch. Div., 769; Mulvane v. Rude, 146 Ind., 476.
    But as such a general devise also connotes an estate for life, if the words of gift be accompanied with others as to the use to be made of powers to be exercised by the devisee, these will interpret the words of gift. '
    If such a devisee be given an unlimited power of disposition, he has a fee simple and the gift over is void. Jackson v. Robins, 16 Johns., 537; Knight v. Knight, 162 Mass., 461; Foster v. Smith, 156 Mass., 379; Lloyd v. Lloyd, 173 Mass., 97; Bradley v. Carnes, 10 Pickle, 27; Jauretche v. Proctor, 48 Pa., 466; Good v. Fichthorn, 144 Pa., 287; Evans v. Smith, 166 Pa., 625; Taylor v. Brown, 88 Me., 57; Benz v. Fabian, 54 N. J. Eq., 615; Downey v. Borden, 7 Vr., 461; Law v. Douglass, 107 Ia., 606; Hambel v. Hambel, 109 Ia., 459; Stowell v. Hastings, 59 Vt., 494; Combs v. Combs, 67 Md., 11; Trask v. Sturges, 170 N. Y., 482; Dalrymple v. Leach, 192 Ill., 57; Underhill on Wills, secs. 686, 689.
    On the contrary, if the devisee be given only a limited power of disposition he has not a fee simple, but ■merely a life estate with a limited power of appointment, and the devise over is good as' gift of a true remainder as to the property not appointed under this power; and where the power is to sell for reinvestment, the remainder attaches in equity to the proceeds arising from the exercise of the power.
      Smith v. Snow, 123 Mass., 323; Morse v. Natick, 176, Mass., 513; Mansfield v. Shelton, 67 Conn., 390.
    ■Where the gift to the first devisee is. by. express terms limited to his life,, the gift to him also of powers exceeding those which a life tenant, could exercise-does not necessarily show an intention to enlarge his life estate into a fee. The very fact of limiting the first estate to a life estate indicates an intention to reserve the residue of the estate in the property given for further dispositions; in other words, the gift of a life estate connotes the existence of. a remainder which is not given. Consequently, if there' be a gift over of what remains undisposed of in such cases this-also is effective as a gift, of a remainder, for the same reasons that preserve such a gift where the gift to the first taker was a general devise, but limited by construction to a life estate. Collins v. Wickwire, 162 Mass., 143; Copeland v. Barron, 72 Me., 206; Young v. Insurance Co., 101 Tenn., 311; Burleigh v. Clough, 52 N. H., 267; Wooster v. Cooper, 53 N. J. Eq., 683; Schouler on Wills (3 ed.), 549; Underhill on Wills, secs. 687, 688.
    Where the quality of an estate given is expressly stated, the following of this with a grant of all the powers which inhere in such an estate raises no inferencé that the powers were intended to be additional to. the estate, and therefore that the estate intended to be given was less than that described by the words used. The expression of the powers is presumed to be but another definition of the estate given. Page on Wills, sec. 575; Stuart v. Walker, 72 Me., 146; Copeland v. Barron, 72 Me., 206, 210; Reid v. Atkinson, Ir. R., 5 Eq., 373; Bowlby v. Thunder, 105 Pa., 173;
      Evans v. Smith, 166 Pa., 625; Trask v. Sturges, 170 N. Y., 482.
    A grant of power “to dispose of” property without any express limitation as to the manner in which, or objects or purposes for which, it is to be disposed of, means a power to dispose by any method of conveyance known to the law, be it deed, bill of sale, gift, or last will; and that this disposition may be of the entire ownership of the property, or of any lesser interest therein. Burbank v. Sweeney, 161 Mass., 490; Wead v. Gray, 78 Mo., 59; Forsythe v. Forsythe, 108 Pa., 129; Security Co. v. Pratt, 65 Conn., 161; Johnson v. Battelle, 125 Mass., 453; Tower v. Hartford, 115 Ind., 186; Pierce v. Simmons, 16 R. I., 689.
    A gift of what may remain undisposed of after •the death of a prior devisee implies the existence of a power in that devisee, either as attached to the estate given him, or by grant in addition to that estate, to dispose of the corpus of the property. Kimball v. Sullivan, 113 Mass., 344; Bowen v. Dean, 110 Mass., 438; Jauretche v. Proctor, 48 Pa., 466; Gifford v. Choate, 100 Mass., 343; Jones v. Bacon, 68 Me., 34; Attorney General v. Hall, Fitzg., 314.
    On the other hand, if the first gift be expressly limited to one for life or years, the implication is of a grant of power in addition to that existing in the estate itself; and when this power is exercised it is not by virtue of the estate given, but by virtue of the grant in addition to the estate. So the devise over is good as to the property not disposed of under the power. For as to this the remainder which always existed after the particular estate has not been destroyed. Collins v. Wickwire, 162 Mass., 143.
    It follows, therefore, that under the will here in question, tested by every test, Maria Zeltner took a fee simple. Such an estate is given to her in express terms; this gift is then confirmed by an express grant to her of all the powers which inhere to an estate in fee simple without any limitation upon them; and it is further confirmed by a gift over of what may remain after she has exercised all these powers, again without any restriction as to the manner or mode or object or purpose of exercise.

      Mr. J. R. Von 8 eg gem, for defendants in error.
    The defendants in error contend that under said will of John Zeltner, deceased, his widow took only a life estate, and that the remainder was vested in his foster children, the defendants in error herein, subject to a legacy of $100 to each of his four nephews and one niece mentioned in said will. In that contention we claim to be fully supported by the following cases: Smith v. Bell, 6 Pet., 68; Upwell v. Halsey, 1 P. W., 651; Baxter v. Bowyer, 19 Ohio St., 490; Stableton v. Ellison, 21 Ohio St., 527; Huston v. Craighead, 23 Ohio St., 198; Posegate v. South, 46 Ohio St., 391; Johnson v. Johnson, 51 Ohio St., 446; Greene v. Greene, 57 Ohio St., 628; Campbell v. Greenawalt, 67 Ohio St., 520; Enyart v. Keever, 52 Ohio St., 631; Sutherland v. Duerr, No. 118,949 Hamilton Common Pleas.
    The case at bar was one in ejectment, and therefore one purely at law. The petition was in regular form, and the answer a general denial. A jury was waived, and cause submitted to the court, on purely documentary evidence, no . Oral testimony being heard. The answer of plaintiff in error does not set' up any, plea .of estoppel, nor equitable defense of any bind, y.et in the brief for plaintiff in error the learned counsel argue that the decree in the case of Maria Zeltner v. The Home, 1 Dec., 306, 46,231 Superior' Court, “settles the case for the widow upon her right to convey, and consequently settles it also for the defendants in error.” When the papers, in that case were offered in evidence we objected, to the-samé, because the defendants in error were not parties to that suit and therefore not bound by the judgment therein. We contend that it is a. general., rule that an adjudication takes effect only between, the parties to the judgment, and that it gives no . rights to or against third parties, and that where, a judgment is relied upon, it is inadmissible, except, as against persons who are parties to the suit, or.in privity with them. In that case we were-not parties.to the suit, nor in privity with Maria Zeltner, for we do not claim title under her, but under her husband, John Zeltner, deceased, and we-assume that it is not necessary for us to cite any authorities on this subject.
    We fail to perceive, what bearing the judgment in the case of Duerr and Lippardt v. The Home, in case 45,043 Superior Court, has upon this case. That case was dismissed upon their own motion, without prejudice to their rights under the will of John Zeltner, deceased, or otherwise. Upon consent of parties .the Home’s title was quieted against them, as against the deed made Toy the widow to them on August 4,1890, or any deed since then. And that is all the decree does. It does not even quiet the title: against them as to the deéd made by the widow to the-Home.
    : No injustice has been done the Home by the decisions so far made in this case. After the death of' the widow (December 17, 1898), the Home entered into possession of the premises and received all the-rents thereof. When the decree herein was entered (January 4, 1902), we did not desire judgment for the rents, but were willing the Home should keep-them, and the amount thus received was more than sufficient to pay the $100 admission fee, which was. all the Home asked of every widow who entered it. Everything the Home received above' that amount is a gift, and in this case Mrs. Zeltner had no power to make the one she did.
    The conveyance to the Home by Mrs. Zeltner was to take effect after her death. She reserved the use, possession and income of the property during her life. In other words, she reserved from the Home-, the life estate that the will gave her, and conveyed, to the Home the fee of said premises, which the will did not give her, and this the courts below said she-could not do.
   Summers, J.

The defendants in error, plaintiffs, in the court of common pleas, contend that Maria Zeltner took only a life estate, and mainly rely upon Smith v. Bell, 6 Pet., 68; Baxter v. Bowyer, 19 Ohio St., 490, and Johnson v. Johnson, 51 Ohio St., 446.

The defendant contends: First, that she took an estate in fee simple; Second, that if she did not take-an estate in fee simple, whatever estate she took was coupled with an unlimited power to sell or dispose and that a fee simple passed by the deed; and Third, that if the power to sell or dispose is limited to a sale or disposition for her support still her deed is good.

The rule is, that when an estate is devised with an absolute power of disposal, a devise over of what may remain is void, but that where a life estate only is given in express words to the first taker, with an express power in a certain event, or for a certain purpose, to dispose of the property, the life estate is not, by such a power, enlarged to a fee or absolute right, and the devise over is good.

In Jackson v. Robins, 16 Johnson’s Reports, 537, where the testator by his will devised “all his real and personal estate whatsoever, . unto his wife Sarah, to hold the same to her, her executors, administrators, and assigns, but in case of her death, without giving, devising, or bequeathing by will, or otherwise selling or assigning the said estate, or any part thereof, then he devised all such estate, or all such parts thereof as should so remain unsold, undevised, or unbequeathed, unto his daughter Catharine Duer, to hold the same to her, her executors, administrators, or assigns.” Chancellor Kent in his opinion, said: “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 certain and express words, and annexes to it a power of disposal. In that particular and special case, the devisee for life will not take an estate in fee, notwithstanding the distinct and naked gift of a power of disposition of the reversion. This distinction is carefully marked and settled in the cases.”

Again he says: “The question then occurs, was the limitation over to Mrs. Duer valid, after the creation of such an estate in fee? The words of the will were, that ‘in case of the death of his wife, without giving, devising, and bequeathing by will, or otherwise selling or assigning the estate, or any part thereof, he doth give and devise all such estate as should so remain unsold, undevised, or unbequeathed to his daughter, Lady Catharine Duer,’ etc. This limitation over, must be either as a remainder, or as an executory devise, and it is impossible that it should be either, upon any known, principles of law. No remainder can be limited after an estate in fee, and, therefore, if a devise be to A and his heirs, and if he die without heirs, then to B, the remainder is repugnant to the estate in fee, and void. (Preston v. Funnell, Willes, 164; Pells v. Brown, 2d point, Cro. Jac., 590.) Nor can the limitation over operate by way of executory devise, because the power to dispose of the estate by will or deed, which Lord Sterling gave to his wife, is fatal to the existence of that species of interest. It is a clear, and settled rule of law, that an executory devise can not he prevented or defeated by any alteration of the estate out of which, or after which, it is limited, or by any mode of conveyance. It can not be created, and it can not live under such a power in the first taker.”

The same statement of the law is made by the learned Chancellor at a much later date. 4 Kent’s Com., 270.

The law is very clearly stated and illustrated by Peters, J., in Stuart v. Walker, 72 Me., 145, 148. He says: “The defendants contend that, where a life estate is devised, whether impliedly or expressly given, with an unqualified power of disposal annexed, a gift or limitation over is of no effect. That is true where the life estate is created by implication, but not true where it is expressly created in. direct and positive terms.

“A life estate by implication usually arises, where-a donor devises property generally, without any specification of the quantity of interest, and adds-some power of disposition of the property, and provides a remainder. For instance: A gives an estate to B, with a power of disposal annexed, and a. gift over to C. Here is an association of purposes, and intentions, divisible into three parts. What, does A mean by all of them combined? What is implied by them?

“A first gives the estate to B in general terms.. Stopping there by our Revised Statutes, he gives an. estate of inheritance. But an estate in fee first described, may be cut down to a lesser estate by subsequent provisions.

“A power of disposal is annexed by A to his bequest to B. The effect of this depends upon whether-it is a qualified or an unqualified power. If it is an absolute and unqualified power, it really neither takes, from, nor adds to, the amount of the estate previously given, though there be a gift over. It would, be merely equivalent to adding words of inheritance, making the gift to B and his heirs and assigns.. But those words were implied before. The law presumes in such case, that a testator superadds the-unlimited power of disposal, to make his intention as emphatic and unequivocal as possible. The gift: over in such case, is regarded as repugnant to and. ■controlled by prior provisions. There is nothing to .go over. A mail can not give the same thing twice. Having given it once, it is not his to give again. Such •a devise comes within the principle of the class of ■cases where a testator gives an estate of inheritance, and then undertakes to provide that the devisee shall not alien the property; or that it shall not be “taken for his debts; or that he shall dispose of it in some particular way indicated; provisions which are powerless to control the prior gift.

“But where the power of disposal is not-an absolute power, but a qualified one, conditioned upon some certain event or purpose, and there is a remainder or devise over, then the words last used do restrict and limit the words first used, and have the force and efficacy to reduce what was apparently an estate in fee to an estate for life only. Thus: A gives an estate to B, with the right to dispose of as much of it, in his lifetime, as he may need for his support, and if anything remains unexpended at B’s death, the balance to go to C. Here there may be something to go over. B is to dispose of the es“tate only for certain specified purposes. He can ■defeat the remainder, only by an execution of the power. The clear implication of such a bequest, “taking all its parts together, is that B is to possess a life'estate. Here a life estate is implied, and is not expressly created. •

“But A makes this devise: ‘I give to B, my estate to have and to hold during his lifetime and no longer, with the right to dispose of all the same during his lifetime, if he pleases to do so, and any unexpended balance I give to C. ’ ’ Here a life estate is expressly created, instead of arising by implication. Here, an absolute and unqualified power of disposal, annexed, does not enlarge the estate to a fee. Where an estate is expressed, it need not be implied. An absolute control does not amount in such case to an absolute ownership. There is no conflict between the three parts of such a devise. Each clause in the combination may be literally executed. They are in no wise inconsistent with each other.

“An examination of the cases invoked to the aid of the defendants, shows that all or nearly all of them pertain to life estates by implication, and are mostly instances where the purpose was, not to extend a life estate, but to reduce what was apparently an estate in fee. In some of the cases cited, may be found general expressions appropriate enough in the connection where used, which would be misleading when applied to devises, such as the one now presented.”

The law is similarly stated in Van Horne v. Campbell et al., 100 N. Y., 287, by Andrews, J., in a very learned opinion, in which all of the New York and many English and American decisions are reviewed.

To the same effect is McClellan v. Larchar, 45 N. J. Eq., 17; 16 Atl. Rep., 269, and the case further is important in that it was held that without regard to the devisee’s estate the will gave her power to sell and the defendant was decreed to specifically perform his agreement to purchase the real estate.

No useful purpose would be subserved by further quotations from the cases. A multitude of cases may be found by reference to those already given. The decisions of this court profess to be in harmony with the law as declared in those cases and they are in line with them unless it he conceded that, relying too much upon Smith v. Bell, 6 Pet., 68, there may he some doubt as to the correctness of the conclusion in Baxter v. Bowyer, 19 Ohio St., 490, that the power of sale was limited to a sale for the benefit of the estate and as to which Judges Scott and White dissented.

In Smith v. Bell, supra, a provision of the will was as follows: “Also, I give to my wife, Elizabeth Goodwin, all my personal estate whatsoever and wheresoever, and of what nature, kind, and quality soever, after payment of my debts, legacies, and funeral expenses, which personal estate I give and bequeath, unto my said wife, Elizabeth Goodwin, to and for her own use and benefit, and disposal absolutely the remainder of the said estate, after her decease, to be for the use of the said Jesse Goodwin.” Mr. Chief Justice Marshall says (79): “The first part of the clause which gives the personal estate to the wife would, undoubtedly, if standing alone, give it to her absolutely. But all the cases admit that a remainder limited on such a bequest, would be valid, and that the wife would take only for life. The difficulty is produced by the subsequent words. They are ‘which personal estate I give and bequeath unto my said wife, Elizabeth Goodwin, to and for her own use and benefit, and disposal absolutely.’ ” The operation of these words, when standing alone, cannot be questioned. But suppose the testator had added the words “during her life.” These words would have restrained those which preceded them, and have limited the use and benefit and the absolute disposal given by the prior words, “to the use and benefit, and to a ■disposal for the life of the wife,” and he concludes (84), “we think the limitation to'the son on the death ■of the wife restrains and limits the preceding words ,so as to confine the power of absolute disposition, which they purport to confer of the slaves, to such a disposition of them as may be made by a person having only a life estate in them.” The case is ■cited with apparent approval in Brant v. Virginia Coal & Iron Co., 3 Otto, 326, 333.

' Mr. Justice Field, after citing another case, says: “Numerous other cases to the same purport might be cited. They all show that, where a power of disposal accompanies a bequest or devise of a life éstate, the power is limited to such disposition as a tenant for life can make, unless there are other words clearly indicating that a larger power was intended. /

Howard v. Carusi, 109 U. S., 725, is in accord with the cases hereinbefore cited, and in the opinion Mr. Justice Woods cites, with approval, the eases which they follow, and also Gifford v. Choate, 100 Mass., 343, in which Hoar, J., says of Smith v. Bell, supra: “The authority of the decision is somewhat impaired by the circumstance that no eounsel was heard on behalf of the party against whom it was made, and the attention of the court does not seem to have been drawn to the authorities in favor of the opposite conclusion.”

In Stuart v. Walker, supra, Peters, J., says of Smith v. Bell, that it is “a case differing somewhat from many, of the authorities.” And in Copeland v. Barron, 72 Me., 206, 211, he says it “is contrary to the authorities generally.” Roberts v. Lewis, 153 U. S., 367, is in accord with the authorities' and is especially noticeable in that the court overrules its former decision, Giles v. Little, 104 U. S., 291, and follows the subsequent decision Little v. Giles, 25 Neb., 313.

The pertinent part of the will there considered is •as follows: “After all my lawful debts are paid and discharged, the residue of my estate, real and personal, I give and bequeath and dispose of as follows : To my beloved wife, Editha J. Dawson, I give and bequeath all my estate real and personal, of which I may die seized, the same to be and remain hers, with full power, right and authority, to dispose of the same as to her shall seem most meet and proper, so long as she shall remain my widow, upon the express condition, however, that if she should marry again, then it is my will that all the estate herein bequeathed, or whatever may remain, should go to my surviving children, share and share alike. ’ ’

On page 378, Mr. Justice Gray says: “In Smith v. Bell, the testator bequeathed ‘all his personal estate, consisting principally of slaves, to his wife, to and for her own use and benefit and disposal absolutely; the remainder of the said estate, after her decease, to be for the use of his son;’ and the decision was that the wife took a life estate only, and the son a vested remainder. The wife had made no conveyance of the property; the words of the gift •over were the technical ones ‘the remainder of .my •estate,’ appropriately designating the whole estate •after the wife’s death; and the court distinctly intimated that, if the will were construed as giving the wife ‘the power to sell or consume the whole personal estate during her life,’ a gift over of ‘what remains at her death’ would be ‘totally incompatible’ and ‘void for uncertainty.’ ” Smith v. Bell, 6 Pet., 78. But in the case at bar, the gift over is in express terms of “whatever may remain.” If the intent expressed by these words can be carried out, the children take only what has not been disposed of. If the clause containing them is repugnant and void, the view of the supreme court of Nebraska, that the widow took an estate in fee is fortified. See Howard v. Carusi, 109 U. S., 725; Potter v. Couch, 141 U. S., 296, 315, 316.

“In Brant v. Virginia Coal Co., the bequest which was held to give a life estate, and no power to convey a fee, was only of the testator’s estate, real and personal, to his wife, “to have and to hold during her life, and to do with as she sees proper before her death.’.’ 93 U. S., 327.

“The numerous cases cited in the briefs have been examined, and show that the general current of' authority of other courts is in favor of our present conclusion; but, as they largely depend upon the phraseology of particular wills, it would serve no-useful purpose to discuss them in detail.

“It is unnecessary to express a positive opinion upon the question whether, under this will, the widow took an estate in fee; for if she took a less estate with power to convey in fee, the result of the case, and the answers to the questions certified, must be the same as if she took an estate in fee herself.

“For the reasons above stated, this court is of opinion that the will of Jacob Dawson did give his-widow such an estate in lands in Nebraska of which he died seized, that she could during her widowhood convey to third persons an estate in fee simple therein. ’ ’

Section 5970, Bevised Statutes, reads: “Every devise of lands, tenements, or hereditaments, in any will hereafter made, shall be construed to convey all the estate of the devisor therein, which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.”

This perhaps does not affect the question, otherwise than to place the burden on him who contends that the devise is of a less estate, because prior to its enactment words of inheritance were not necessary to the passing of an estate in fee simple by will

But it is unnecessary to determine the estate taken by Maria Zeltner in the view taken of the power given her by.the will. A life estate in real property with a power to convey in fee is not an estate in fee simple but it is more than an estate for life, the estate, it is true, is not greater, but there is an estate and a power. This power may be given with an- estate expressly limited for life, but an unlimited power cannot be given with an estate limited for life by implication, the reason being that if the power is unlimited there can be no life estate, the presence of the power prevents the implication of a life estate. But why, looking to substance and not to form, should not the power exist with an implied life estate? To avoid defeating the testator’s intention by declaring his devise' over void, because repugnant, by declaring the absolute and unlimited power, he has coupled with the estate, limited to the conveyance of an estate such as'might be granted by one owning the life estate is to defeat the power and equally disregard his intention.

In Van Horne v. Campbell et al., 100 N. Y., 287, 295, 303, Andrews, J., says: “The limitation over in the ease supposed would be repugnant to the prior fee and the superadded power, not because there could not in the nature of things be a complete and perfect execution of the intention of the testator, for manifestly there is no necessary repugnancy, in fact, between a gift to A, with power of disposition, and a gift over to B, in case the power is not exercised. But such a gift over, upon the assumption made, is repugnant in law to the prior estate in power, because the law has declared that a valid limitation over can not be made to depend upon such a contingency. The law in the case supposed defeats the intention o'f the testator. But this occurs in all cases where a testator undertakes to do what the law does not permit. The rule of perpetuities and our statute of uses and trusts furnish familiar examples.” And page 303: “Many of the established rules of property limitation are technical and in many instances are founded upon mistaken analogies or upon reasons which no longer have any significance. But to depart from them in cases where rights have become vested and titles have been taken in reliance upon them, would produce great inconvenience, and in many cases work gross injustice. ’ ’

The devise to Maria Zeltner is just as clearly in fee and the power to sell or dispose of the property as absolute and unlimited as those under consideration in Roberts v. Lewis, supra, and nearly every word, there, of Mr. Justice G-ray, respecting them, just as applicable here. John Zeltner gives to his wife all his estate, real and personal, in fee simple, “with power to sell or dispose of it (the estate in fee simple) as she may see fit,” and after the death of his wife, “if there is anything remaining of my personal and real estate it shall be distributed in' the following manner.” The estate given to the plaintiff below is contingent upon something .remaining and inasmuch as the power of disposal given to the widow is unlimited and as she may see fit there is nothing upon which to raise a trust or a right to question the wisdom of her discretion.

In McClellan v. Larchar, 45 N. J. Eq., 17, the will of General McClellan was as follows: “First. After the payment of my just debts and funeral expenses, I give, bequeath, and devise to my beloved wife, Ellen Marcy McClellan, all the estate, both real and personal, of whatever nature, and wheresoever situate, of which I may die seized or possessed, or to which I may be entitled at the time of my death, the same to be held and enjoyed by her fully and absolutely, and without restriction of any kind, with full power to alienate, convert, or dispose of the same in such manner as she may deem best. Second. Upon the death of my said wife, or if she should not survive me, I direct that all of my estate, real and personal, herein mentioned, or so much of it as remains the property of my wife on her death, should she survive me, with the exception of such articles as hereinafter specifically bequeathed, be divided between my two children, George B., Jr., and Mary M., share and share alike.” Chancellor McGill says: “It is not, however, necessary, to the determination of the controversy in this case that I should hold that the complainant has taken a fee simple in the land in question, and that the devise over to the testator’s children is void. It is sufficient, for the purpose of affording the relief sought, that it appears that the complainant may exercise her power of sale conferred by the will. Such a power has clearly been given to her, not only by express language, but also by necessary implication from the terms of the will. In the first clause it is provided that she shall have full power to alienate, convert, or dispose of the testator’s estate, real and personal, as she may deem best. Language could not more explicitly give a power of sale. It is objected, however,. that this power is controlled and limited by the subsequent provisions of the will, recited above, which is as follows: “Should my wife survive both my children I leave her entirely at liberty to dispose of all the’ estate, both real and personal, accruing to her under the provisions of this will, as she may deem best.” This clause implying that she is not at liberty to dispose of the entire estate. This provision is used by the testator in connection with the devise and bequest over in favor of his children, and plainly relate only to that part of the estate which shall remain undisposed of at the death of the wife. It clearly does not affect any disposition the complainant may be desirous of •m airing by deed during her life. But the terms of the devise over to the children themselves imply and recognize the complainant’s power to sell. This devise contemplates the disposal of “so much” of the estate devised and bequeathed to the complainant “as remains her property at her death.” That such an expression implies a power of sale is established by abundant authority.

In Howard v. Carusi, 109 U. S., 725, 733, Mr. Justice "Woods says: “But by the terms of Lewis Carusi’s will, the complainant and her sisters were only entitled to so much of the estate of Lewis as Samuel should ‘not have disposed of by devise or sale.’ The bill of complaint charges that Samuel Carusi, by his last will and testament, had devised to certain persons therein named, among them the complainant, all the property devised to him by the last will of Lewis Carusi. There was, therefore, no property of the estate of Lewis Carusi to which the supposed devise to complainant and his sisters could apply.”

“The case of complainant received no support from the precatory words of the will of Lewis Carusi. These words express ‘the hope and trust that Samuel Carusi will not diminish the same (viz., the .property devised to him by the will) to a greater extent than may answer for his comfortable support, ’ and the testator then devises to complainant and her sisters what Samuel shall not have disposed- of by devise or sale.

“The words do not raise any trust in Samuel. He is not made a trustee for any purpose, and no duty in respect to the disposition of the estate is imposed upon him. But even if the will had contained an express request that Samuel should convey to the complainant so much of the estate as he did not dispose of by sale or devise,. there would be no trust, for the will, as we have seen, gives Samuel Carusi the absolute power of disposal.”

Reference is made to the following cases as wholly or in part sustaining the conclusion: Kent v. Morrison, 153 Mass., 137; Hoxie v. Finney, 147 Mass., 616; Gifford v. Choate, 100 Mass., 343; Dodge v. Moore, 100 Mass., 335; Hale v. Marsh, 100 Mass., 468; Paine v. Barnes, 100 Mass., 470; Clark v. Middlesworth, 82 Ind., 240; Silvers v. Canary, 109 Ind., 267; Henderson v. Blackburn, 104 Ill., 227; and Walker v. Pritchard, 121 Ill., 221.

There seems to be some misapprehension of Johnson v. Johnson, 51 Ohio St., 446. That case does not decide, though there may be expressions in the opinion susceptible of that interpretation, that a devise over of what, or if anything, remains, of itself limits an absolute or unqualified power of sale, but in the opinion it is said: ‘ ‘ The plain intention of the testator as shown by the whole will, is, that the property is given to the widow to be by her used and consumed, and that while so using and consuming the same she is empowered to bargain, sell, convey, exchange, or dispose of the same as she may think proper, limited, however, in the exercise of such power, to the purpose for which the property is given to her, that is for her consumption.” And having found such to be the intention of the testator, effect is given to his intention by holding that the power of disposal is limited to such disposal as she might think proper for consumption in her life support. Under the power so limited she could not dispose of the fee of the property by gift during her life, nor by will at her death. And accordingly it was held that the petition, averring that the widow had consumed less than the income and that the whole of the estate had been obtained from her by the defendant by fraud and undue influence,, stated a good cause of action.

Whether or not the conclusion, that a limitation over of what remained unconsumed was a limitation of the power, is supported by the authorities it. is not important to inquire for no word of similar import is found in the will of John Zeltner, and if that conclusion in Johnson v. Johnson is correct, the case is sustained by abundant authority.

In the present case, by the express terms of the. will, Mrs. Zeltner took an estate in fee; and the subsequent limitation by like terms, applies only to what may remain of the estate after her power with respect to it has been exercised. If, by construction,, there should be imported into the will a limitation which is not expressed therein; namely, that the devise is for her support only, still it would follow that the judgment below is wrong, for it does not permit the plaintiff in error to be indemnified for the money which it expended in her support, to which indemnity, even upon that view, it would be equitably entitled.

Moreover, no fraud is charged, and it appears from the statement of counsel for defendants in error that the court found against Mrs. Zeltner in a suit brought by her in her lifetime to set aside the-deed on the ground of want of consideration and her mental incapacity.

It is unnecessary to review the many decisions of this court. All have been examined and none it is. thought is in conflict with the law as laid down in the cases hereinbefore noticed, unless it be in some of them holding valid the limitation over, but none holds an absolute power limited by the mere fact, that the donee of the power took an estate for life, but in each instance the limitation has arisen from some language in the will indicating such intention in the testator.

Maria Zeltner having power to convey an estate in fee simple in the land in question, and having done so, the defendants in error show no right to recover, their estate being defeated by her execution of the power. It follows that the judgments below are reversed and upon the finding of facts .judgment is rendered for the plaintiff in error.

Reversed.

Spear, C. J., Davis, Shauck and Crew, JJ., concur.


text:
    Gibbons v. Ebding.

      Deed recital — That specific premises be used as driveway by grantee, etc. — Is a reservation of easement — Which passes with the land — Easement owner may put gates across same, when — Such driveway will not be enjoined, when — Property rights.

    1. A recital in a deed that a specific part of tbe granted premises is to be used as a driveway in common by tbe grantees and tbe owners of adjoining land is a reservation of a right in the nature of a servitude or easement in the property granted appurtenant to the adjoining land of the grantor and binding on that conveyed to the grantee, and the right and burthen thus imposed will pass with the lands to all subsequent grantees and will be protected or enforced in equity.
    '2. The owner of the servient estate may use the land for any purpose that does not interfere with the easement, and in the absence of anything in the deed or in the circumstances under which it was acquired or used, showing that the way is to be an open one, he may put gates or bars across it unless they would unreasonably interfere with its use.

      3. Where the reservation is of “the westerly twelve feet of the above described property to be used as a driveway in common by the owners of property on Willson avenue adjoining the described twelve-foot driveway and by the above grantees,” and there was nothing to show that the driveway was to be an open way, but it is shown that it is used by trespassers, who commit nuisances therein and thereby reduce the rental value of the property, equity will not enjoin the erection or maintenance of a gate.
    (No. 8405
    Decided June 21, 1904.)
    Error to the Circuit Court of Cuyahoga county.
    The record title of this case is William J. Gibbons and Agnes Gibbons, plaintiffs in error, v. Marie Ebding, defendant in error.
    In 1890, one, Southern owned a tract of land at the northeast corner of Willson avenue and Kinsvater street, in Cleveland, fronting one hundred and twenty-four feet on the east side of Willson avenue and running east one hundred and sixty feet along the north side of Kinsvater street.
    He conveyed several lots out of the tract, fronting them on Willson avenue and describing them in the deeds as running east one hundred and twenty feet “to a twelve-foot driveway.” Subsequently he conveyed a strip forty feet in width off the east end of the tract to the plaintiffs in error and in the deed recited, “The westerly twelve feet of the above described property to be used as a driveway in common by the owners of property on Willson avenue adjoining the described twelve-foot driveway, and by the above grantees.”
    At that time he still owned a lot fronting on Will-son avenue, a part of which thereafter, by mesne •conveyances, passed to the defendant in error, the deed from Southern reciting that the premises extended “to a twelve-foot driveway,” and the deed to the defendant in error reciting that the premises extended “to a proposed driveway twelve feet wide. ’ ’
    The defendant in error, plaintiff below, brought, suit to enjoin the defendants from building a fence-along the west side of the driveway and from erecting a gate across it, and for damages.
    The defendants answered, averring that they owned the twelve feet in fee simple; that the.plaintiff had no title or easement in the twelve feet strip,, and-that a gate across it was necessary to keep the public from trespassing.
    The courts below granted the relief prayed for. The circuit court in its finding of facts found as follows:
    “Eighth. Said driveway was used by plaintiff and other grantees of the property abutting on the same and fronting on Willson avenue, for taking in. coal, taking out ashes, hitching horses, and as an approach to the stable of plaintiff, which she built after she bought the property. It was also used by trespassers who made use of the twelve-foot strip' and committed nuisances therein, and the rental value of defendant’s property was reduced thereby.”

      Messrs. Goulder, Holding & Hasten, for plaintiffs, in error.
    The first question for consideration is, whether plaintiff has an easement over these twelve feet. An easement can only be created by grant, express, or implied, or by prescription, and as the court found plaintiff has no right by prescription, she-must rely upon an easement by grant. This easement can only be created by deed or by a conveyanee operating as a deed. Jones on Easements, sec. 80.
    Looking at deeds of plaintiff and her predecessors in title, the court will see that no grant was made to her or them of an easement over these twelve feet, and that the only mention made of a driveway in the deeds to any person along Willson avenue is as a boundary of the lands conveyed.
    It will also be observed that while the deeds of her predecessors in title are “to a twelve-foot driveway,” that her deed is “to a proposed driveway.” Eggleston v. Bradford, 10 Ohio, 316.
    It is evident that there never was an express grant of an easement over these twelve feet, and that the grant to plaintiff was not to a driveway but “to a proposed driveway,” indicating that at the time of the grant there was no driveway there. The land of plaintiff did not include these twelve feet.
    “When lands are granted by metes and bounds, all the area within those bounds, and no more, passes.” Lockwood v. Wildman, 13 Ohio, 430; Lembeck v. Nye, 47 Ohio St., 352. Plaintiff cannot, therefore, claim any easement by her deed.
    The circuit court held that these twelve feet were appurtenant to the property granted plaintiff.
    We submit that cannot be, because the court finds that the land at the time of the grant was unimproved and that the twelve feet were not and are not a way of necessity, the owners of lands on. Will-son avenue have access to their lands from that public way.
    Nothing passes by the word appurtenances except such rights, privileges or easements as are strictly necessary and essential to the proper enjoyment of the estate granted. It must exist at the time of the grant. Ogden v. Jennings, 62 N. Y., 526; Griffiths v. Morrison, 106 N. Y., 165; Root v. Wadhams, 107 N. Y., 384.
    A mere convenience is not sufficient to create an easement. Parker v. Bennett, 93 Mass., 388; 3 Washburn Real Property, 395. We, therefore, submit that an easement was not acquired by plaintiff as an appurtenance.
    The fact that she subsequently built a barn to which access was had by the alleged driveway through the yard of defendants, did not constitute it an appurtenance. Meek v. Breckenridge, 29 Ohio St., 649.
    What effect had the following in defendant’s deed from Southern: “The westerly twelve feet of the above described property to be used as a driveway in common by the owners of property on Willson avenue adjoining the described twelve-foot driveway, and by the above grantees?”
    Undoubtedly this was a restriction upon defendant’s use, but did the grantor reserve an easement for himself and assigns, and, if so, did he thereafter grant an easement to plaintiff’s predecessor in title, and can plaintiff claim an easement when her grantor deeded “to a proposed driveway?”
    We maintain that Southern neither made a reservation nor an exception in his own behalf. Engel v. Ayer, 85 Me., 453; Ashcroft v. Railroad Co., 126 Mass., 198.
    The alleged easement cannot be said to be an exception because the driveway had no existence at the time of the grant. It cannot be said to be a reservation 'because the deed contains no words of reservation, which, must be as explicit as the grant; and to create an easement in fee must contain worus of inheritance. Wilder v. Wheeldon, 56 Vt., 350; Bean v. French, 140 Mass., 229; Claflin v. Railway Co., 157 Mass., 489; Kister v. Reeser, 98 Pa., 1-5.
    We contend, further, that Southern not having-made any reservation to himself, he could not make-a reservation in favor of a stranger to the deed. Murphy v. Lee, 144 Mass., 371; Hornbeck v. Westbrook, 9 Johns., 73; Craig v. Wells, 11 N. Y., 315;. Ives v. Van Auken, 34 Barb., 566; Young, Petition of, 11 R. I., 636; Hill v. Lord, 48 Me., 95; Devlin on Deeds, sec. 222.
    There are no words of reservation in defendant’s-deed, and while Southern did restrict defendant’s, use, he could claim no further interest in the twelve-feet without reservation of an easement, which we-have seen must be created by words of limitation and be as explicit as the grant. It is also to be remembered that there was no driveway there, and that the land was unimproved, having no buildings or fences thereon at the time of the grant. We submit that, notwithstanding the restriction upon defendants, the character of defendant’s right of use is not under consideration, but plaintiff’s right of use, and that no easement was created in favor-of plaintiff' and no reservation was made by Southern to himself, and certainly none to his assigns.
    Nor did Southern attempt to make a grant of an easement to any of his grantees, for he made no-mention in any of the deeds of a driveway except as a boundary. Nor did plaintiff’s grantor attempt to confer any right, but made a grant “to a proposed driveway twelve feet wide.”

      The contention contracts itself to this: Does a ■person by a mere restriction of use in his grant reserve to himself any right of use without explicit words of reservation?
    Passing that question, does a grantor by restricting the use of part of a parcel conveyed to one .grantee thereby grant an easement to a subsequent grantee of another parcel without other words than those making the land in which there is only a. restricted use a boundary? Surely the mere bounding •of lands by a private driveway does not give the grantee an easement thereover when it is not a way of necessity. Yet that is this case. Indeed, plaintiff does not rely upon her own deed as a conveyance ■of right of use, but bases her claim of use upon the words in defendant’s deed. And upon them the ■circuit court bases its judgment.
    That an owner of a tract of land may plat it and ;grant parcels in the tract with reference to the plat by which all grantees are bound, is not this case, and ■cases decisive of rights under those circumstances have no application herein. This case is confined •solely by. the deeds, some of which were given before that of defendants’ and some afterwards.
    We do- not think, in our view of the law applicable to this case, that the question of the right of plaintiffs in error to maintain a gate on Kinsvater street at the end of the twelve feet can be reached.
    Even where there is a grant of an easement, if there is nothing in the grant which in terms restricts the owner from enclosing the way by a gate which •can be opened and closed, the owner may erect one. Washburn on Easements, 255; M. P. Church v. Laws,
      4 Circ. Dec., 562; 7 C. C. R., 218; affirmed, 55 Ohio St., 662; Knobloch v. Hollinger, 6 Circ. Dec., 424; 9 C. C. R., 286.

      Messrs. Kerruish, Chapman & Kerruish, for defendant in error,
    submitted no printed brief.
   Summers, J.

What right or easement, if any, in the twelve feet driveway the owners of the lots conveyed to Southern had prior to his conveyance to the plaintiffs in error, it is not necessary to determine.

From his deed to the plaintiffs in error it is ap-. parent that Southern intended therein to create or reserve a right to himself and to the owners of lots on Willson avenue a twelve feet strip, for a driveway to use in common with the grantees, and so was created an easement in the land granted appurtenant to the land for the benefit of which it was created and then owned by him.

In Whitney v. Union Railway Co., 11 Gray, 359, 363, Bigelow, J., says: “Every owner of real property has the right to so deal with it, as to restrain its use by his grantees within such limits as to prevent its appropriation to purposes which will impair the value or diminish the pleasure of the enjoyment of the land which he retains. The only restriction on this right is, that it shall be exercised reasonably, with a due regard to public policy, and without creating any unlawful restraint of trade. Nor can there be any doubt that in whatever form such a restraint is placed on real estate by the terms of a grant, whether it is in the technical form of a condition or covenant, or of a reservation or exception in the deed, or by words which give to the acceptance of the deed by the grantee the force and effect of a parol agreement, it is binding as between the grantor and the immediate grantee, and can be enforced against him by suitable process, both in law and equity. ’ ’

And in Coudert v. Sayre, 46 N. J. Eq., 386, 395, Van Fleet, Vice Chancellor, states the following as his conclusions from an examination of a number of authorities: “The doctrine now in force on this subject I understand to be this: that when it appears by the true construction of the terms of a grant that it was the well-understood purpose of the parties to create or reserve a right, in the nature of a servitude or easement, in the property granted, for the benefit of other land owned by the grantor, no matter in what form such purpose may be expressed, whether it be in the form of a condition, or covenant, or reservation, or exception, such right, if not against public policy, will be held to be appurtenant to the land of the grantor, and binding on that conveyed to the grantee, and the right and burthen thus created and imposed will pass with the lands to all subsequent grantees. And any grantee of the land to which such right is appurtenant, acquires, by his grant, a right to have the servitude or easement, or right of amenity, as it is sometimes called, protected in equity, notwithstanding that his right may not rest on a covenant which, as a matter of law, runs with the title to his land, and notwithstanding that it may also be true that he may not be able to maintain an action at law for the vindication of his right.”

It follows that the circuit court was right in con-eluding that the plaintiff below, by her deed, acquired an easement to the driveway over the twelve-foot strip and that she was entitled'to an injunction protecting her in the right to use it, but upon what ground the plaintiffs in error were enjoined from enclosing it by a gate is not apparent.

There is- nothing in the language of the reservation of the right to use the twelve feet as a driveway that indicates that it was to be either open or public. On the contrary it is reserved to be used in common by the owners of property on Willson avenue adjoining the driveway, and by the grantees. The property of plaintiffs in error is not bounded on the east by a public way or street, but by a beer garden, it is said, and the court expressly finds, that the driveway is also used by trespassers who commit nuisances therein, and that the rental value of. plain-, -tiff’s property is reduced thereby.

“Where a right of way is created by reservation, the grantee acquires the property subject only to this right, and may use the land .for all purposes not inconsistent with it. 'The only limitations upon the right of the grantee are such as are necessary to the proper use of the right of way; nothing which is not expressly reserved will be regarded as an incident to the reservation except that which is necessary for such reasonable enjoyment and use.’ Accordingly it was held that the erection of gates or bars at the termini of the way was not an unreasonable interference with its use.”

“The rule is general that the landowner may put gates and bars across a way over his land, which another is entitled to enjoy, unless, of course, there is something in the instrument creating the way, or in the circumstances under which it has been acquired or used, which shows that the way is to be an open one. The easement of way is for passage only. The land remains the property of the owner of the servient estate and he is entitled to use it for any purpose that does not interfere with the easement.” Jones on Easements, secs. 413, 407; Washburn on Easements, 255; Methodist Prot. Church v. Laws, 4 Circ. Dec., 562; 7 C. C. R., 211.

The decree of the circuit court is modified to the extent that it allowed an injunction against the erection and maintenance of a gate, and as so modified, is

Affirmed.

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