source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Empire Transportation Company v. W. S. Blanchard.
    The opinion of the court, in deciding a ease in which the facts and law are stated generally, can not, by hill of exceptions, be made a substitute for the statement of “the conclusions of facts found, separately from the conclusions of law,” as required by section 280 of the code.
    Motion for leave to file petition in error to the District Court of Cuyahoga county.
    The action in the court of common pleas was brought by Blanchard against the Transportation Company, as a common carrier, to recover the value of certain coal-oil, delivered to it at Cleveland, to be carried to Scranton, Pennsylvania, and there to be delivered to Blanchard, the owner and consignee. The oil was destroyed by fire, while in the hands of the Transportation Company, or its agent. The pleadings made issues for trial that need not be stated.
    A bill of exceptions was taken, and made part of the record, which shows that the parties respectively offered testimony tending to maintain the issues on their respective parts.
    “ Thereupon the defendant requested the court to find the various facts set forth in the answer, and to adjudge and hold, as questions of law arising therefrom, that— •
    “ First. The said plaintiff was bound to take out insurance, as provided for in the sixth clause of the bill of lading, attached to the answer; and, upon his failure to do so, the defendant was not bound to reimburse him for loss arising from fire.
    “ Second. That if plaintiff failed to fulfill any of the conditions of said bill of lading, he could not recover in this action.
    “ Thereupon the court, being fully advised in the premises, do find the facts and the conclusions of law, as set forth in the decision marked ‘ Exhibit B,’ and made part of this bill of exceptions. To which finding and judgment of the court the defendant then and there excepted,” etc.
    Exhibit B, above referred to, is a lengthy opinion of the court, delivered on the final disposition of the whole case, in which the issues are stated, the testimony commented on, the law referred to, and the conclusion of the court announced ; but it does not appear that it was the intention of the court to “ state the conclusion of facts found, separately from the conclusions of law,” nor is there any such statement made.
    Judgment being rendered for the plaintiff below, the defendant moved to set the same aside, and for a new trial, on the following grounds:
    “ First. That the finding of said court is against the evidence.
    “ Second. That the finding and judgment of the court is contrary to the law and evidence in such case.

      “ Third. That the judgment was given for the plaintiff, when it ought to have been given for the defendant.”
    The motion was overruled, and defendant excepted.
    The district court having affirmed the judgment, the plaintiff in error now asks the reversal of both judgments.

      J. E. Ingersoll, for the motion.

      J. E. Estep and S. Burke, contra.
   By the Court.

The decision referred to in the bill of exceptions as “ Exhibit B,” is a lengthy opinion of the court, in deciding the case generally in favor of the plaintiff, in which there is no statement of “ the conclusions of fact found, separately from the conclusions of law,” within the meaning of section 280 of the code; and the making of such opinion a part of the record, by a bill of exceptions, is not a compliance with the section named, and can not be treated as a substitute for the separate findings and statement required by it. -

Motion overruled.


text:
    August Brenchweh v. G. W. Drake, Treasurer of Brown County.
    1. An action to enforce the lien of an assessment, under the act of April 11, 1876 (73 Ohio L. 218), commenced within six years of the passage of the act, if such assessment shall so long continue to be a lien upon the property, is not barred by the statute of limitations.
    2. Whether such action is within the purview of the statute of limitations. Qumre.

    Motion for leave to file a petition in error to the District Court of Brown county.
    The original action was brought by defendant in error against plaintiff in error, to enforce an assessment lien, under the road improvement act of 1867 and its supple-merits, against the lands of plaintiff’in error, under the act of April 11, 1876 (73 Ohio L. 218), entitled “an act to amend an amendment to an act supplementary to the several acts relating to the collection of delinquent taxes,” etc.
    The defendant below pleaded the statute of limitations, and alleged that “the cause of action had not accrued within six years,” etc.
    To this defense the plaintiff’ demurred, and the court of common pleas sustained the demurrer, and rendered judgment against the defendant.
    On appeal to the district court, the demurrer was again sustained and final judgment was rendered against the plaintiff in error.
    The only error now assigned, is upon the rulings of the court below in sustaining the demurrer to the plea of the statute.
    . G. Bamlack and D. W. C. Loudon and W. D. Young, for the motion,
    contended that the action was barred by the lapse of six years after the right of action accrued, under the second subdivision of the code. Mount v. Lakeman, 21 Ohio St. 643. Because, 1. The liability of the defendants to be assessed was created by statute. 2. This liability is neither a penalty nor a forfeiture.

      B. B. Honey and John G. Marshall, contra,
    called the attention of the court to the fact that there was no law authorizing this suit to be brought to recover assessments until 1876 (73 Ohio L. 218), and as to the running of the statute of limitations, cited Trustees, etc., v. Campbell, 16 Ohio St. 12,15; 29 Ohio St. 569; Stoughton et al. v. Baker et al., 4 Mass. 228; Angelí on Limitations, 29, sec. 37 (5th ed.); The People v. The Supervisors of the County of Columbia, 10 Wend. 363; The People v. Gilbert, 18 Johns. 226; Inhabitants of Stoughton v. Baker, 4 Mass. 528; Weatherhead.v. Bledsoe, 2 Overt. (Tenn.) 352; PLarlock v. Jaekson, 1 Const. (S. 0.) 125; Nimmo’s Bx’r v. Commonwealth, 4 Hen. & Munf. (Ya.) 53;
      United States v. Williams, 5 McLean, 188; State v. Fleming, 39 Miss. (4 Bennett), 667; Iverson v. Buboso, 27 Ala. 418; Joslyn v. Stone, 28 Mass. (Cush.) 758; Troutman v. May, 33 Penn. St. 445; Carey v. Whitney, 48 Me. 516; Bagley v. Wallace, 16 Serg. & R. (Penn.) 245; Commonwealth v. Milieu berger, 7 Watts (Penn!) 450; Madison Co. v. Bartlett, Br. (111.) App. 30; Miller v. Lessee of Lindsey, 1 McLean C. C. S3; Parmilee v. McNutt, 1 Sm. & M. .179.
   By the Court.

The statute under which this assessment was made provides that the assessment shall be placed upon the duplicate for taxation against the lands assessed, and shall be collected in the same manner as other taxes.

The act under which the original suit was brought provides : “ That when any taxes of assessments, heretofore or hereafter levied or assessed, shall stand charged against any lands or lots or parcels thereof, upon the tax duplicate or special duplicate of the county of this state, for state, county, city, or any other purposes, and the same shall not be paid within the time prescribed by law for the payment of such taxes and assessments, the treasurer of such county, in addition to any other remedy provided by law for the collection of. such taxes and assessments, is. hereby specially authorized and empowered to enforce the lien of such taxes and assessments upon said property, by commencing, in any of the courts of this state having jurisdiction of the subject-matter, a civil action in the name of such treasurer,” etc. This statute was the first which gave the remedy sought to be enforced by the original action, and that action was commenced in the December next after its passage. The assessment was standing on the duplicate for the year 1876, then in the hands of the treasurer for collection, and there is no doubt that the usual remedy by sale for delinquency was subsisting at that time. Thei’e is no limitation, under the statute, upon the time within which payment of delinquent taxes, standing upon the duplicate in the treasurer’s hands for collection, must be enforced by the ordinary mode of delinquent sales. The cause of action was therefore subsisting at the time the original action was commenced, and it is quite clear that the statute of limitations could not begin to run against such action until the] right of action ‘ was given by the statute of 1876-.

"Whether the action given by this statute is within the purview of the statute of limitations is a question which we are not now called upon to decide. ■

Motion overruled.


text:
    George Hackworth et al. v. Peninah Robinson.
    An action upon the bond of an executor or administrator for tbe causes mentioned in part seven of the “ act to provide for the settlement of the estates of deceased persons ” (S. & 0. 601), can not be brought before a justice of the peace.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Lawrence county.
    Peninah Robinson, the defendant in error, sued the plaintiffs in error, before a justice of the peace, on an administrator’s bond, executed by George Hackworth, as principal, and by William E. Rowe and' C. G. Waller, the other plaintiffs in error, as his sureties. The breach of the bond alleged consists of the. neglect of the administrator to pay a debt admitted to be due from the estate, and to the payment of which the plaintiff was by law entitled.
    The trial before the justice resulted in a judgment against the plaintiffs in error.
    The judgment was subsequently affirmed, on error, by the court of common pleas, and by the district court.
    The reversal of these judgments is now asked upon the grounds, among others, that a justice of the peace is not authorized to entertain a suit upon the bonds of an adminministrator.

      W. S. Forgey, for the motion.

      F. V. Fean, contra.
   By the Court.

The original action was brought under section 182 of the act to provide for the settlement of the estates of deceased persons (S. & C. 601). Section 185 provides that “ such suit shall beNrought in the court in which the bond is filed.” ...

In Dawson v. Dawson, 25 Ohio St. 443, it was held that this provision had reference, when the act was passed, to the court of common pleas, and that the subsequent creation of the probate court, and the investing it with probate jurisdiction, did not transfer the authority to entertain such suits from the court of common pleas to the probate court.

The jurisdiction, therefore, to entertain such suit, still remains in the court of common pleas of the county in which the bond is filed.

• The jurisdiction of justices of the peace to entertain such suits is not inhibited by the provision in section 10 of the justices’ act (S. & C. 772), which provides that justices shall not have cognizance of actions against officers for misconduct in office, except in the cases provided for in the act; but the inhibition is found in section 185, above referred to, of the administration law.

The policy of the pi’ovision seems to be the same as that found in section 47 of the code, which requires an action on the official bond of a public officer to be brought in the county where the cause of action, or some part thereof arose.

We are of opinion, therefore, that the justice of the peace, was not authorized to entertain the action.

Leave granted; the judgments of the district court, of the court of common pleas, and of the justice reversed, and the action dismissed.


author: White, O. J.

text:
    Addison A. Hosmer and Amanda Hosmer v. Edward Sturges, Sr. et al.
    A testator at the time of making his will had five children, three being over age, and a daughter and one son being minors. He devised to each of his sons a parcel of real estate. Subsequently he sold portions of this real estate to two of his sons, taking their notes for the purchase-money. The remainder of his estate, both real and personal, he gave to his executors in trust, with authority to convert the same into money, and to invest the proceeds in such manner as they might judge most, expedient. Provision was made that his two youngest children should, he supported and educated from the general income of his estate until they were twenty-one years of age. He also authorized the trustees to. “ pay or loan ” to either of his three oldest sons, such part of the income, or principal of his estate as they might think proper, not exceeding at, any time the one-fifth part' of his personal estate to either one of them; and after his two youngest children became twenty-one, he authorized! the trustees to “ pay or loan to them in like manner; ” and if the trustees thought it expedient, he authorized them to make “ such payment or loan” to his daughter at any time after she attained the age. of . eighteen years. The will then provided as follows: “And whenever-said trustees deem it prudent and advisahle to do so (after my youngest child living shall have become twenty-one years of age), I hereby authorize them to make a fair arid equitable division of all my real estate, and personal property, state and hank stocks, bonds, and other evidences of debt, between my said five children or the survivors of them, or their heirs, it being my desire that each of my said children shall have the benefit of as near the same amount of my property as convenient when twenty-one years of age”—Held:

    1. That the payments or loans that the trustees were authorized, to make to-the older children and to the younger as they became of age, were not intended to bear interest; nor to be refunded unless it should become necessary in order to equalize the shares of the several children on final distribution. Such payments or loans were intended to be in the nature of advancements, made in anticipation of the final division of the estate. '
    2. The desire expressed by the testator, that each of his children shall have the benefit of as near the same amount of his property, as convenient when twenty-one years of age, has reference to the authority previously conferred on the the trustees, of making advancements to the children, and of making the final division among them, and is intended as a. guide to the trustees in the execution of such.authority,.

      3. The -will contemplates the making of the final division of the property belonging to the estate, among the children in specie; and in making such final division, each child is not only to be allowed the benefit of the payments or loans made by the trustees under the will, but also the benefit of similar payments or loans ^intended as advancements, made by the testator in his lifetime. The “benefit” which it was intended each of his children should have is such as would result from the receipt of his or her share of the property by way of advancement, or on the final division. But the trustees are not authorized to make allowances to the older children by way of interest or otherwise, for their not receiving their shares when they became of age, nor for their not having received more on their respective shares than was advanced to them, either by the testator in his lifetime, or by the trustees after his death.
    4. The real estate described in the will as devised to the sons, is to be accounted for in the final division of the estate. The portions sold subsequently to the making of the will are to be charged to the sons purchasing the same according to the terms of the sale; the portions not thus sold are to be charged to the devisees respectively according to the value of the part received by each at the time the devise took effect.
    Appeal reserved in the District Court of Richland county.
    The plaintiff, Amanda Hosmer, the youngest child and legatee of Ében P. Sturges, deceased, brings this suit against Edward Sturges, Sr., Andrew L. Grimes, and Dimon Sturges, executors of the will and trustees of the estate of her father, and against her four brothers, alleging a wrongful and unequal distribution of $869,122.28, of her father’s estate by the trustees, in giving to the three oldest more than a fifth each ; and demanding a full fifth, under a claim that the will requires a distribution to the five children share-and-share-alike.
    Her brother, Henry H. Sturges, by cross-petition, demands the same relief.
    The trustees in their answer set up that in so far as the trust has been executed, it has been done in accordance with the true intent and meaning of the will. They furthermore claim, that should it be otherwise, that the devisees had agreed upon the construction of the will, which agreement was approved by the trustees, they believing it to be the true one; and that the division of the estate, in so far as it has been made, has been in accordance 'with such agreement.
    They also ask the direction of the court in the execution of the trusts confided to them by the will.
    Eben P. Sturges executed his only will on the 22d day of Eebruary, 1850.
    On the 80th day' of September, 1861, he executed a codicil, in which he substituted his oldest son, Di-mon, as one of the trustees, instead of Hezekiah Sturges, his brother,' making no other change in the will.
    He died on the 15th day of 8 anuary, 1862, leaving four sons and one daughter :
    Dimon, born October 21, 1825 ; Stephen B., born March 12,1827 ; and Edward, born Eebruary 1, 1829, were the is-" sue of his first marriage, with Amanda Buckingham; Henry H. Sturges, born December 21,1885, and Amanda, born January 18, 1840, the issue of his second marriage, with J erusha M. Hale.
    His third wife survived him, but is not referred to in the will, she having been provided for by an antenuptial contract ; and by agreement between all the heirs and legatees, a sufficient.fund has been, and is to be, kept by the trustees to provide for her annuity during life.
    His estate, of about equal parts, personalty and realty, valued at upward of $400,000, was all disposed of by the will, within his own family.
    ■He had received property by his first wife, which he kept as trustee, and treated as her property. After her death he divided it among her children as they attained majority-
    The amount of property brought by his second wife was some larger, which he treated in like manner, not subjecting it to the plan of distribution of his own estate.
    Her silverware and five hundred dollars in money, being all of her estate mentioned in the will.
    ■ Of the total amount thus far distributed ($369,122.28),■ $200,000 of personalty, and $70,000 of realty, Was divided January 1, 1863; the other distributions were made during the. years 1863, 1864, 1865, 1866, and 1867.
    To Dimon Sturges............1............. $89,731 86
    To Stephen 33. Sturges.................... 85,812 29
    To Edward Sturges........................ 80,698 32
    To Henry H. Sturges...................... 62,092 84
    To Amanda Sturges........................ 50,771 52
    At the time of the testator’s death he held notes or due bills on Dimon to the amount of $30,000; on Stephen to the amount of $22,340; on Edward, $29,976; and on Henry, $7,276.94.
    The circumstances under which these notes and due bills were given do not appear in the testimony ; nor what proportion of them bore interest upon their face.
    The will is as folloAvs :
    • “ In the name of the benevolent Father of all, I, Ebeu Perry Sturges, of Mansfield, Ohio, do make and publish this my last will and testament. I give and bequeath to my daughter, Amanda Sturges, one silver coffee urn, two silver teapots, one silver sugar bowl and cream cup, and one silver bowl now in my possession, marked J. M. H., to be delivered to her when she arrives at the age of twenty-one years (or at an earlier period, if my trustees hereinafter named shall deem it expedient), upon condition that my son, Henry H. Sturges, shall have five hundred dollars, to be paid him out of the estate of his mother, Jerusha M. Sturges, when he is twenty-one years of age ; but should my daughter Amanda not live to the age of eighteen year’s, then I give and bequeath said silver tea and coffee set, above enumerated, to my son, Henry H. Sturges, to be delivered to him when he arrives at' the age of twenty-one years.
    “ I give and bequeath to my son, Henry H. Sturges, and to my daughter, Amanda Sturges, jointly, one silver ladle, six silver tablespoons, twelve silver teaspoons, two dessert and one cream spoons, marked J. M. H., and all the wearing apparel left by their mother, Jerusha M. Sturges ; and should either of them decease before arriving at legal age, then I give said silver ladle and spoons and wearing apparel to the survivor.
    I give to my sons, Dimon, Stephen B., and Edward Sturges, six silver tablespoons, and twelve silver teaspoons? and all the wearing apparel left by their mother, Amanda B. Sturges, said spoons being marked A. B.
    “ I give, bequeath, and devise to each of my sons, Dimon, Stephen B., Edward, and Henry H. Sturges, thirty feet each of in-lots Nos. 97 and 98, in the town of Mansfield, fronting on West Diamond street, and running east the width of both said lots; said Dimon Sturges to have thirty feet of the north end of said lots; Stephen B. Sturges to have the next thirty feet, adjoining on the south; Edward Sturges to have the next thirty feet adjoining Stephen, on the south; and Henry H. Sturges to have the next thirty feet adjoining Edward, on the south.
    “ I give and bequeath to Hezekiah Sturges, Edward Sturges, Senior, and Andrew L. Grimes, and their successors, whom I hereby appoint executors of this, my last will and testament, all my goods and chattels, rights, credits, and personal property of every kind and description (except the articles hereinbefore devised), in trust to and for the following uses and purposes, viz : That the said Hezekiah Sturges, Edward Sturges, Senior, and Andrew L. Grimes, as trustees aforesaid, shall, at as early a day as convenient, sell, collect, and otherwise reduce the same into money (except such household furniture and personal property as they may think proper to reserve for the use of my heirs, which property so reserved, if any, may at any subsequent period be sold by such trustees), and after paying my debts, shall, from time to time, as money shall be realized therefrom, invest the same in such manner as they may judge most expedient.
    “ I give and bequeath unto the said Hezekiah Sturges, Edward Sturges, Senior, and Andrew L. Grimes, all the bank-stock, state and other stocks and bonds which I may own, and in trust to and for the uses and purposes hereinafter mentioned, hereby giving them full power and authority to sell any or all of said stocks or bonds, and invest the proceeds of the same in some other manner, if in their discretion they shall think proper.
    “ I give, bequeath, and devise unto the said Hezekiah Sturges, Edward Sturges, and Andrew L. Grimes, and their successors, all the real estate of any kind and nature whatsoever (excepting so much of in-lots Nos. ninety-seven and ninety-eight, in the town of Mansfield, as are hereinbefore devised), that I may own in the State of Ohio, or elsewhere, in trust to and for the following uses and purposes, viz; That the said trustees shall hold and possess the same, and receive the rents and profits, and from time to time may, after paying the taxes and repairs, and the necessary expenses attending the same, invest said rents and profits in.such manner as in their judgment may be most expedient; and they may from time to time, whenever, in their judgment, they shall think proper, sell, by private or public sale, or in such manner, upon such terms of credit or otherwise, as they may see proper, all or any part of my real estate, and deeds to purchasers, execute, acknowledge, and deliver; and the proceeds of such sale or sales they shall invest in such manner as in their judgment they may judge most expedient.
    . “ Full power and authority is hereby given and granted to said trustees as aforesaid, to. settle and arrange, or to continue, in such manner as they may see proper, all my business growing out of the different partnerships in which I am interested, and to make such division and partition of such real or personal property that I may own in connection with other persons, as they, in their discretion, shall think proper; the power given in this will, to said trustees, to be exercised by them jointly, or by a majority of them; and in case of the death or resignation of one more of them,! hereby authorize and empower my brothers, Hezekiah Sturges, Solomon Sturges, and Edward Sturges, or those of them who may be living, to appoint a trustee or trustees to fill any vacancies which may occur.
    “ I hereby give said trustees full power and authority to fulfill and comply with all contracts that I have made, respecting real estate, hy executing and delivering, in my name, all necessary conveyances and deeds, and to carry out and fulfill all trusts that have been or may be confided in me, as far as they may be allowed by the laws of the land.
    “ It is my wish and desire that my two youngest children, Henry II. Sturges and Amanda Sturges, shall be supported and educated from the general income of my estate, until they are twenty-one years of age. And I hereby authorize said trustees to pay or loan to either or any of my three eldest sons such part of the income from or principal of my estate, as they may think prudent and proper, not, however, exceeding, at any time, the one-fifth part of my personal estate to either one of them; and after my two youngest children shall be twenty-one years of age, I authorize said trustees to pay to or loan to them, in like manner, and should said trustees think it expedient to do so, I authorize them to make such payment or loan to my daughter, Amanda Sturges, at any time after she attains the age of eighteen years, and whenever said trustees may deem it prudent and advisable to do so (after my youngest child living shall have become twenty-one years of age), I hereby authorize them to make a fair and equitable division of all my real estate and personal property, state and bank-stock, bonds, and other evidences of debt between my said five children, or the survivors of them, or their heirs, it being my desire that each of my children shall have the benefit of as near the same amount of my property as convenient, when twenty-one years of age. Provided, that if, for any cause whatever, said trustees should deem it imprudent or unwise to intrust to either or any one of my said children, or any of their heirs, so large a proportion of my estate, I hereby authorize them to withhold it, and only furnish them such an amount as will comfortably support them.
    “ In testimony whereof, I have hereunto set my hand and seal, this twenty-second day of February, in the year eighteen hundred and fifty. Eben P. Sturges. [seal.]
    “ Signed and acknowledged by said Eben Pei'ry Sturges, as his last will and testament, in our presence, and signed by us in his presence. P. Bigelow,
    “John Wood.”

      Codicil to the Last Will and Testament of JEben P. Sturges.— “ I, Eben P. Sturges, of Mansfield, Richland county, Ohio, do make and publish this, as a codicil to my last will and testament. I do nominate and appoint my eldest son, Dimon Sturges, as one of the executors of my last will and testament, in the place and instead of my brother, Hezekiah Sturges, named in said will.
    “ In witness whereof, I have hereunto set my hand, this 30th day of September', a. d. 1861. E. P. Sturges.
    “We, the undersigned witnesses, do 'certify that the above paper writing was signed in our presence by Eben P. Sturges, and that we, at his request, and in his presence, signed our names as witnesses to the same, as a codicil to his last will and testament, all of which was done at his residence in Mansfield, this 30th day of September, a. d. 1861. John Sherman,
    “ Solomon Sturges,
    “John Wood.”
    In the court of common pleas a decree was rendered for trustees, and the petition was dismissed. On appeal to the district court, the case was reserved for decision by this court.

      C. H. Scribner, for plaintiffs:
    1. As a genex’al rule, a will speaks only from the death of the testatox’, and we claim that this will speaks from the death of the testator. 1 Redfield on Wills, 379, note, and 385, sec. 11.
    • 2. There can be no question, under the authorities, that the devise to each child vested at the death of the testator. The interest or share became fixed and vested by that event; payment only was deferred.
    A few of the numerous authorities establishing this rule are here referred to: Mendham v. Williams, Law R., 2 Eq. 396; In re the estate of Wm. Walton, 35 Eng. Law & Eq. 589; King v. Isaacson, 17 Eng. Law & Eq. 455; Briggs v. Chamberlain, 23 Eng. Law & Eq. 87; In re Thompson’s Trusts, 15 Eng. Law & Eq. 498; In the matter of House’s Estate, 15 Eng. Law & Eq. 183; Wright v. .Wright, 13 Eng. Law & Eq. 165; In re Richards, Law R., 8 Eq. 119; Brown v. Broion, 44 N. H. 281; Miller v. Keegan, 14 Ind. 502; Mdridge v. Mdridge, 9 Cush. 516; Childs v. Russell, 11 Met. 16; Home v. Van Schaick, 20 "Wend. 564; Morrison v. Morrison, 1 McCarter, 330; Hooker v. Gentry, 3 Met. (Ky.) 463; Fulton v. Fulton, 2 Grant’s Cases, 28; Bowman’s Appeal, 34 Penn. St. 19; lucker v. Bishop, 16 N. T. 402; Thompson v. Thompson, 28 Barb. 432; Van Wyck v. Bloodgood, 1 Bradf. 154; Dominick v. Moore, 2 Bradf. 201; Manderson v. Lukens, 23 Penn. St. 31; Cooke v. Meeker, 36 N. T. 15.
    Whatever share, then, was given to each child, became fixed and vested on the death of the testator. A limited portion of this share might be advanced to each child from time to time, before the final distribution, which was to take place as soon as might be prudent after the youngest child living became twenty-one.
    Then the question recurs: What was the share of each child? What were the respective portions attaching to each at the period of the father’s death ? Was the estate' given'to them in equal or unequal proportions? Was it given to them in such unequal proportions that the eldest was entitled to nearly twice as much as the youngest ?
    3. Right here it is important to bear in mind that the devisees in the will are the children and heirs of the testator ; and in this connection we bring to our aid the well-settled rule: “ The heir is not to be disinherited without an express devise or necessary implication. Br. Dev. 52; Dyer, 330 b; 2 Stra. 969; Cas. temp. Hardw. 142; 1 Wils. 105; Willes, 309; 2 T. E. 209; 2 M. & Sel. 448. See also 3 B. P. O. Towl, 45. Such implication importing, not natural necessity, but so strong a probability that an intention to the contrary can not be supposed. 1 V. & B. 466; 5 T. E. 558; 7 East, 97; 1 B. & P. N. E. 118; 18 Ves. 40:” 2 Jar-man on Wills, 465, 471; 1 Eedfield on Wills, 425; lb. 434, §18.
    Approved in Crane v. Doty, 1 Ohio St. 279; Augustus v. Seabolt, 3 Met. (Ey.) 155.
    Just so far as the construction claimed on the other side takes from our client an equal share of her father’s estate, just so far is she disinherited.
    4. There are many decided cases which show that language such as was employed by the testator does not import an unequal distribution. Weld v. Barnes, 9 Allen, 145; Lovering v. Minot, 9 Cush. 151; Clark v. Wallace, 48 Penn. St. 80; Tucker v. Bishop, 16 N. V. 402; Passmore’s Appeals, 23 Penn. St. 381; Maclin v. Smith, 2 Ired. Oh. 371; Carrington v. Bell, 6 Munf. 374; Newport v. Cook, 2 Ashmead (Penn.), 332.
    It requires but little reflection to satisfy the mind that the payment to each heir of his share at twenty-one does not interfere with an equal division of the estate. Indeed, it is very common for testators to direct an equal distribution of their estates among the objects of their bounty as they severally attain the age of twenty-one. The instances of this are innumerable. We select, at, random, from the reports, a number of cases in which the testamentary disposition was in that form. Williams v. Tartt, 2 Colly, 85 ; Skey v. Barnes, 3 Meriv. 335 ; Tucker v. Harris, 5 Sim. 538; Gordon v. Levi, Ambl. 364; Hooke v. Hooke, 2 Eden, 8; Brie v. Perfect, 1 Colly, 128; Farmer v. Francis, 2 Sim. & S. 505 ; May v. Ward, 5 Br. C. C. 471; Vivian v. Mills, 1 Beav. 315; Weedon v. Fell, 2 Atk. 124 ; Prescott v. Long, 2 Ves., Jr. 690; Mocalta v. Lindo, 9 Sim. 56; ChevauzY. Aislablie, 13 Sim. 71; Britcher v. Leach, 5 Beav. 392 ; Mend-ham v. Williams, Law Bep., 2 Eq. 396; Morrison v. Morrison, 1 McCarter (N. J.), 330.

      It. P. Banney, M. B. Waite, Charles F. Peck, and Horace W. Fowler, also for plaintiffs.

      Jacob Brinkerhoff, for defendants:
    In the' first place, it is a rule which no one will dispute, that-a testator is not obliged to make his children or any other persons who, in case of intestacy, would be his heirs, equal as between each other in the disposition of his estate. He may, indeed, if he pleases to do.so, disinherit all who, in case of intestacy, would be his heirs. So that the provisions of his will, and the acts which they prescribe, and the results at which they aim, are not in direct conflict with law, with settled public policy, or, contra bonos mores, a testator is at liberty to do what he pleases with his property, and, if he pleases, to devise and bequeath the whole of it, even to a stranger; and if he does so—which is, indeed, not very infrequently the case—the utmost effect of it is to afford a presumption of fact, not of law, which may, by possibility, turn the scale in a very doubtful question of interpretation. This proposition is too familiar to require citation or comment; and it follows that even if it were true— which, as applied to this case, we confidently deny—that a testator should mistake the rule of equality as between his heirs, or knowingly ignore or depart from it, it would afford no legal presumption against the construction of the will, which the trustees in this case have adopted.
    Assuming, then, that a testator is of sound and disposing mind and memory, as to which no question is made in this case, and that the provisions of his will are neither unlawful, in conflict with established public policy, nor contrary to good morals—none of which are pretended to have existence in this ease—the sole guiding star of courts in the interpretation of testamentary instruments is the intention of the testator, as manifested by the language he has employed and construed in the light of his surroundings. Wilmot’s Notes, 319 ; Brasher v. Marsh, 15 Ohio St. 109; Williams v. Yeaeh, 17 Ohio, 180; Thompson v. Thompson, 4 Ohio St. 351; Sterling's Ex’rs v. Price, 16 Ohio St. 31.

      Passing from this proposition, thus firmly established, and strongly stated in the language of the authorities, we call the attention of the court to another rule equally well settled, which is thus laid down in Redfield on Wills, p. 431, sec. 14; Id., p. 635, sec. 10. The author says: “ There is, perhaps, no rule of construction of more universal application to wills, or which oftener requires to be acted upon, than that every portion of the instrument must be made to have its just operation, unless there arises some invincible repugnance, or else some portion is absolutely unintelligible.” Furthermore he says : “ It is our duty to give effect to all the words, without rejecting or controlling any of them, if it can be done by a reasonable construction, not inconsistent with the manifest intent of the testator.” And here I may remark, that on every principle of reason and common sense this rule is especially applicable, and its application is more imperiously required in cases where the testator was a man of intelligence, of thought and foresight, of discriminating judgment, and where the will was deliberately made, not hurried by the near approach of death, and where his mind was not distracted by. pain nor weakened by disease; where he was in full health, bodily and mental, and where twelve years supervened for further reflection, and he was still content.
    The testator’s will says, and the will of the testator is the law of the case, and supersedes and overrides all other laws in conflict with it': “ It being my desire that each of my children shall have the benefit of as near the same amount of my property as convenient, when twenty-one years of age.” Here is an end to be aimed at; a purpose to be accomplished; a result to be'attained. And the question was, and is, by what rule, on what principle, can the wishes, the “ desire ” of the testator be realized, accomplished ? And this is a question which they were not at liberty to ignore, nor can this court ignore it; for the language of the testator is dispositive in its character. The words are disposing words. This is settled by indisputable authority. Story’s Equity, sec. 1068; Brasher v. Marsh, 15- Ohio St. 104.

      What, then, were the trustees to do, so as to make a “ fair and equitable division of his” property between his five children, so that each of them “ should have the benefit of the same amount of his property when twenty-one years of age ?” This was the question. If, without reference to, or consideration of the age of each or either of them, they were to adopt the statutory rule of “ share and share alike,” gross inequality would be the result against the elder children. Amanda would enter at twenty-one upon the fruition of a sum of money equal to that for which Dimon had to wait fifteen years! If the fund were distributed in this way, and on this principle, Amanda would have the advantage over him by fifteen years of accumulated interest, and Dimon would be subject to the disadvantage and loss of interest on a like sum for a like period. This would not be either fair or equitable; this would not be to give to each of the children “ the benefit of the same amount of his property when twenty-one years of age.”
    Seeing that this would not do, the trustees resorted to arithmetic, and allotted to each child the same sum, increased by simple interest at six per cent., without rests, in favor of each child, for the period intervening between the time when each became twenty-one years of age and the time of distribution. And this, they thought, and we think, was the least they could do toward realizing the intentions of the testator in respect to the elder children. In no other way could they give to each child the benefit of the same amount of property when twenty-one years of age. And the amount of interest allowed was surely a moderate one. Had Dimon, for instance, received his $50,000 when he became twenty-one years old, he could have compounded the interest every year, and at á much higher rate than six per cent, during the whole fifteen years that he was waiting for it; and Amanda and Henry may do the same with their portions, and when they arrive at the age that Dimon was when he received his portion from the trustees, they will find themselves richer than he then was, for they may make for themselves a compounded interest at more than six per cent., while he, under the ruling of the trustees, is compelled to content himself with simple interest at six per cent., and that without rests in the calculation. The rule adopted by the trustees is exceedingly favorable to the younger children ; and could not be made more so without ignoring utterly the most significant and important provision in the will.
    And here I will remark that the-word C( benefit” is significant ; too significant to be overlooked or ignored. Benefit, advantage, profit, use, avail, say the lexicographers. These are the synonyms of the word benefit. Each of his children, says the testator, is to have the benefit, advantage, profits, use, and avails of the same amount of his property when twenty-one years of age. How could this be done ? How is this “ desire ” of the testator to be realized ? Not through the medium of advancements, for no advancements were made by him. He made loans, and loans stipulating for and bearing interest, and which interest was exacted by the trustees, and both the principle and interest was exacted by the trustees, and both the principle and interest of those loans were carried into and served to swell the general estate, while it is of the essence of advancements that they bear no interest. 8 Pick. 450; 17 Mass. 355; 1 Mass. Digest, 23, see. 5.
    As to those loans to the elder sons, they were the same as if made to strangers. They were interest-bearing debts, due to the testator while living, and to his estate when dead. How, then, could these elder sons, by the rule of “ share and share alike,” after they had been for many years over twenty-one years of age, have the benefit, advantage, profit, use, and avails of “ the same amount of” his “ property when twenty-one years of age ?” It was simply impossible ; and I may safely defy the wit of man to tell me how the “ desire ” of the testator could be realized otherwise than by the adoption of a rule substantially the same as that on which the trustess propose to act.
    Now, what is the meaning and effect of the clause of this will which authorizes the trustees to pay or loan, etc., as it stands out plain and distinct on the face of its language ? Clearly this. It authorizes, permits, the trustees to distribute from the income or principal of “ his estate ”— not his personal estate only, but from his “ estate,” his estate general, at their discretion, more or less, to those of his sons who have become or shall become twenty-one years of age, and to his daughter when she shall arrive at the age of eighteen; not to exceed a certain limit as to each, and to confine this preliminary and antieipative distribution within that limit. What is that limit ? The answer is furnished by the testator’s own language : “ not, however, exceeding at any time the one-fifth part of my personal estate to either one of them.”
    The trustees may distribute from his estate, either realty or personalty, or both, but the measure of the utmost limit of this antieipative distribution to “ either one ” of his children is “ the one-fifth part ” of his “ personal estate.” That is to say, his personal estate at the time of his death, for it is from that time that the will speaks; and the application of this rule of law is the more imperative from the fact that he reviewed his will and added to it a codicil, changing one of his trustees, shortly before his decease.
    That is all there is of it. No argument, no illustration, can make it more definite and clear. The preliminary distribution authorized is not confined to the personal estate; the warrant is not the distribution of his personal estate, but of an amount measured by his personal estate; the personal estate is the measure and limit of this authorized distribution. His personalty, in its widest sense, constituted but about half, more or less, of his whole estate, so that, had this antieipative distribution been carried out and executed in full, there would still have been about one-half of his whole estate left, and affording “ ample room and verge enough ” to adjust and fix the final distribution on the basis of the rule, and in accordance with the principle which he prescribes in the next clause of the will, and the interpretation of which constitutes the dominating question in this case.

      Mattson Leyman and Perry $ Jenney, also for defendants.
   White, O. J.

The two main questions in this case are : 1. Whether an agreement has been made between the beneficiaries under the will, settling the principle upon which the estate is to be divided among them. 2. If there has been no agreement, in what way does the will require the estate to be distributed;

In answering the first question, we deem it unnecessary to enter into an examination of the evidence submitted to establish such agreement. On this branch of the case, we deem it sufficient-to say that, after careful consideration of the evidence, we have felt no difficulty in arriving at the unanimous conclusion that the agreement relied on is not established.

Whether the conduct of Henry, in regard to the division of the estate that has already been made, and his acquiescence therein, have been such as to preclude him from setting it aside and requiring his brothers to refund any excess they may have received, it is not necessary now to determine.

It appears that a large portion of the estate yet remains in the hands of the trustees for distribution ; and for aught that now appears in the case, there may be more than sufficient to make up, in the distribution yet to be made, any' deficiency that may be coming to Henry.

But, however this may be with regard to Henry or any of his brothers, we are satisfied there is nothing in the conduct or acquiescence of Mrs. Hosmer, the plaintiff, that ought to estop her from insisting upon receiving the full share of the estate to which sh.e is entitled under the will. Although she was not married at the time the division was made, yet considering her age and inexperience in bus-iness, she had the right to rely on her brothers, and especially on the trustees of whom her brother Dimon was one, that her father’s will would be carried out, and that she would not be required to take less than the will gave her.

Whether, if it shall become necessary to disturb the division heretofore made, in order to secure to Mrs. Hosmer her full share of the estate, Henry or any of her other Mothers, will have the right to have the division opened up and readjusted in accordance with the will, we need not now consider.

In the solution of the second question, namely, in what way does the will require the estate to be distributed, we> have found much difficulty.

The case has been very ably and elaborately argued, both orally and in printed arguments ; and we have given to- it much consideration.

At the time of the making of the will, three of the sons of the testator were over age, Dimon, the oldest, being then twenty-five years of age. Henry and Amanda' were then minors, the latter being of the age of ten years..

The first three paragraphs of the will relate to the disposition of silverware, wearing apparel, etc., and have no bearing upon the matters in controversy.

By the fourth paragraph of the will the testator devises a small lot of thirty feet front, in Mansfield, to each of his four sons, beginning with Dimon, the oldest, and naming them respectively in the order of their ages. These lots adjoin each other and are a sub-division of two town lots; the depth of the lots being equal to the width of the original lots. After making the will, the testator-sold to Dimon twenty-five feet of the thirty devised to Mm, and took his note for the purchase-money. He alse> sold: to Stephen the five feet of the lot devised to Dimon, which had not been sold to Dimon, with twenty feet of the- lot devised to Stephen. The remaining ten feet of- the- 1'ot devised to Stephen and the two lots devised to Edward and Henry were left as they were at the making of the will..

One of the questions for determinations is,, whether the lots thus taken by the sons, partly by purchase- and,' partly by devise, are to be accounted for by them respectively, on final distribution, as so much received on their respective shares.

By the will, the testator gave all the remainder of his estate, both real and personal, to his executors in trust with authority to convert the-same into money and to invest the proceeds in such manner as they might judge most expedient.

Provision was made that his two youngest children should be supported and educated from the general income of his estate until they were twenty-one years of age. He also authorized his trustees to “ pay or loan ” to either of his three oldest sons such part of the income or principal of his estate as they might think proper, not exceeding at any time the one-fifth part of his personal estate to either one. of them; and after his two youngest children became twenty-one years of age, he authorized the trustees to “ pay or loan to them in like manner;” and if the trustees thought it expedient, he authorized them to make “ such payment or loan ” to his daughter at any time after she attained the age of eighteen years. The will then provided as follows-: “And whenever said trustees may deem it prudent and advisable to do so (after my youngest child living' shall have become twenty-one years of age), I hereby authorize them to make a fair and equitable division of all my real estate and personal property, state and bank stock, bonds and other evidences of debt, between my said five children or the survivors of them or their heirs, it being my desire that each of my children shall have the benefit of as near the same amount of my property as convenient when twenty one years of age ”...

The main controversy arises on this clause, taken in connection with the provisions found in the same paragraph of the will in regard to the support and education of the minor children and the making of payments or loans by the trustees. The construction which the trustees have given it, and upon which they have heretofore-acted in distributing the estate, is to ascertain the shares of the-devisees on the basis of allowing to them equal amounts 'as' they respectively became of the age of twenty-one; and of adding-interest on the amount at the rate of six per cent: per an- ■ num from that time up to the first of January, 1863, the-time of the first distribution.

Under this method of distribution Dimon has received' $89,731.86, while Amanda has received only $50,771.52.

On the other hand, it is claimed on behalf of the plaintiff, that interest is to be charged to the devisees for all pay-' ments or loans made to them under the will by the trustees and that such payments or loans are not to be regarded as in the nature of advancements.

We can not regard either of these claims as warranted' upon a proper construction of the will. -

We do not propose, however, to enter into an examination of the various grounds upon which the respective claims of the parties are sought to be supported; but to' state as briefly as we can the conclusions at which a' majority of the court have arrived as.to the true construction-of the will, in respect to the matter in controversy. ■ , ' >

Our conclusions are as follows:

• 1. That the payments or'loans which the trustees were authorized to make to the older children, and to the younger as they became of age, were not intended to bear interest; nor to be refunded, unless it should become necessary in order to equalize the shares of the several childrexi on final distribution. Such' payments or loans were intended in the nature of advancements, made in anticipation of the final division of the estate. . ■!

2. The “desire” expressed by the .testator, that each of his children should have the benefit of as near the-same amount of his property as convenient when t.wenty-ohe years of age, has reference to the authority previously conferred on the trustees of making advancements to-the children, and of making the filial division of the estate among them; and is intended as a guide to the trustees in the execution of such authority. ' ’ " ' 'M.

3. The will contemplates the making of the final division of the property belonging to the estate among the ■children in specie; and in making such final division, each child is not only to be allowed the benefit of the payments or loans made by the trustees under the will, but, also, the benefit of'similar payments or loans intended as advancements made by the testator in his lifetime. The “ benefit,r which it was intendéd each of his children should have is such as would result from the receipt of his or her share of the property, by way of advancement, or on the final division. But the trustees are not authorized to make allowances to the older children by way of interest or otherwise for their not receiving their shares when they became of age, nor for their not having received more on their respective shares than was advanced to them, either by the testator in his lifetime or by the trustees after his death.

The will is not to be construed differently from what it would have been had the testator died shortly after the will was made. The will was made in 1850, and the scheme of disposition which it embodies seems to have remained unchanged in the mind of the testator. The authority given to the trustees to make payments or loans, in the nature of advancements, was prospective, and was intended only to operate after his death. It is to be presumed, that to the extent the testator intended his children to be advanced in like manner in his lifetime, he made such advancements himself.

4. The real estate described in the will as devised to the sons, is to be accounted for in the final division of the estate. The portions sold subsequently to the making of the will, are to be charged to the sons purchasing the same according to the terms of sale; the portions not sold are to be charged to the devisees respectively, according to the value-of-'the pai’t received by each, at the time the devise took effect.

A decree will'be entered in accordance with this opinion.

McIlvaine, J., dissented.


author: Scott, J.

text:
    John W. Carter v. Lillie B. Reddish et al.
    1. In the construction of a will, it is well settled as a paramount rule, in this state, that the intention of the testator, as gathered from the whole will, must control, when such intention is not in conflict with the law or against public policy.
    2. Words in a will are to be understood according to their ordinary, natural, and legal signification, unless it is manifest from the context, or from other provisions in the will, that the testator has used them in a different sense, and unless the sense in which they were used is clearly apparent.
    8. Where real estate is devised to A., an infant son of the testator, in general terms, and the devise is followed by a habendum “ during his natural life, and to his heirs,” together with a limitation over to certain nephews and nieces, in case A. shall die within age, and without lawful issue, the words “ heirs ” in the habendum will be construed as a word of limitdtion, enlarging the life estate to a defeasible estate in fee-simple, if such construction be conformable to the general scope of the will, and the apparent scheme of disposition, and consistent with all the other provisions of the -will; and where a different construction would leave the fee of the premises undisposed of, in the event of A.’s death, without issue, after becoming of full age.
    4. The 47th section of the wills act of 1840, and the corresponding 53d section of our present wills act, were intended merely to forbid the application of the rule in Shelley’s case, where such application would defeat the manifest intention of the testator.
    Error to the Superior Court of Cincinnati.
    The defendants in error, who are the children of Stevenson Reddish, deceased, brought their action in the court below, to recover the possession of a lot in the city of Cincinnati, to which they claim title as devisees in fee under the will of their grandfather, Thomas 13. Reddish. Plaintiff' in error, who was defendant in the original action, claims title to the same premises, under a conveyance in fee-simple made by Stevenson Reddish in • his lifetime. The lot in controversy is one of those devised by the will to Stevenson Reddish ; and the rights of the parties depend on the question whether under this will Stevenson Reddish took an estate in fee-simple, or a mere life estate in the property devised to him.
    The court below held that the will in question gave to Stevenson but a life estate in the premises, and entered •judgment for plaintiffs below.
    Plaintiff in error asks a reversal of this judgment on the ground of supposed error in the construction given to the will by the court below.
    Tbe testator was possessed of considerable property, both real and personal, and resided in Cincinnati. He had two infant children, Sarah and Stevenson, and a wife, in whom he appears to have had no confidence. He had a brother and sister, residing in Manchester, England, each of whom had a family of children. He made the will in question in March, 1831, when he was contemplating a visit to England. The ship on which he sailed was wrecked on the voyage, and he was lost. The main provisions of the will which relate to the disposition of his property are as fol-. lows:
    “ I give and bequeath to my daughter Sarah the following real estate belonging to me, viz : My house and premises on West Third street; my house and premises on Mc-Allister street, near to-Fourth street, east; my house and all premises on New Market (or Eighth street); my house and premises on Cherry street, or alley; my house and premises on West Fourth street (a frame); a lot of ground, purchased of William Pierson, nearly opposite to Phillips & Speer’s paper mill, and a lot of ground, purchased of William Hill Woodward and wife, situated in the uorthern liberties in the township of Millcreek, being parts of lot No. 26, as per deed, etc.
    “ I give and bequeath to my son Stevenson thq following real estate, belonging to me, viz : My house and lot on Harrison street; my brick house and premises on West Fifth street; my frame house and premises on West Fifth street; my two brick houses on Centre street, together with a lot on which they stand; my frame house and lot on Centre street, near the corner of Smith street; my frame house and lot on West Front street, formerly owned by Anthony Thompson and William Kenyon conjointly; also a lot of ground in the town of Springfield; Ohio, purchased of John and Elizabeth Baldwin ; see records of Hamilton county, book 23, p. 424. Each of my aforesaid children to have and to hold the same during their natural lives, and to their heirs, and in case of the decease of both of my aforesaid children before they may be of maturity according to law, and without lawful issue, then the whole of the aforesaid real estate, as also all the real and personal estate, or any property whatsoever, which maybe coming to them through this my last will, to be left to the surviving ehil-. dren of my sister Elizabeth Bentley, and my brother John Reddish, both of the town of Manchester, in England,equally to-share and share alike the same. I give and bequeath to my children as aforesaid the whole of my remainiñg própei'ty, whether real or personal, not enumerated heretofore, subject, however, to the disposal other ways of any part or parts thereof (as I may see fit hereafter), to be equally divided between the said Sarah and Stevenson, at the time the said Sarah’ becomes of ago.”
    “ I will that the guardian of my children take into his kind keeping the following articles, to be given up to them before or at the time they and each of them become of age (as he shall see fit), viz : My portrait, painted by Corwine, together with a mantel time-piece, now in possession of -, guardian, together with my jewelry, plate, trinkets, etc., with the exception of my gold patent lever watch, seal, etc., to be given to my daughter Sarah, at the time aforesaid.

      “ The residue of the articles above alluded to — viz., my iron chest or safe ; my gold patent lever watch, chain, seal, and key; my books, of every description; my desk, with the boxes, trunks, etc., and in fact all of which may be found in my office (not otherwise disposed of) — to be given to my son Stevenson as aforesaid. And in case the decease of both my said children before becoming of age, then the aforesaid property, as well as all other property of which they may be possessed, or might become possessed on.their becoming of age, shall be given up to the surviving children of my brother and sister, now residing in Manchester, or elsewhere, as aforesaid. I will that my executors take immediate possession of all my furniture, beds and bedding, etc., wheresoever the same may be found, and dispose of the same to the best advantage, placing the amount thereof to the credit of my children, share and share alike.”
    “ Further, I will it to be understood that at the time my eldest child, Sarah, becomes of age, and a division of my property takes place, that the guardian is still to retain the share coming to my son Stevenson until he, my said son, becomes of full age, according to law, and then the said share to be given immediately up to him, and the functions of the guardian, as also the executor or executors, to cease.
    • “ In regard to a certain piece of property situated on Third street, and being part of lot No. 109, in the town of Cincinnati, I wish it to be understood that, although the same may have been conveyed by me on the 19th day of August, 1826, to my wife Phoebe, subject, however, to my own control thereafter, that the same be strictly retained and given up to my daughter Sarah by my executors, as before provided for in this, my last will; the said Phoebe having never been worthy of such a gift, and said deed being forced from me, by her threats to destroy certain property in notes, bills, etc., which she had willfully purloined and secreted, E. Hotchkiss and J. Poster, Esq., being witnesses to the transaction.”

      Aaron F. Perry, of Perry & Jenney, for plaintiff in error:
    I. There is no expression in the will, indicating that testator had any other estate in his mind for any one, than an estate in fee. He spoke in the concrete of “ real estate,” of “ property, real and personal.” It was devised to his children, and if they should live to maturity, it was to remain theirs. But in case of the death of both, it was to be “ left,” “ given up” to other devisees.
    Had it been given to them for life only, the interest, rents, and accumulations during their lives should have been theirs. On the contrary, all these accumulations were to become a part of the estate, and if anything had to be “ given up” to nephews and nieces, all was to be given up, which otherwise had been given to his children. There is no indication that the property, which, in the contingency supposed, was to be “ left” or “ given up” to the children of his brother and sister, was to be theirs in any different, superior, or more unlimited sense, than it was to be his own children’s, in case they should live to enjoy it. If his children should live to get possession, to a disposing age, there is no indication it was to be “left” or “given up” to anybody.
    If a different intention anywhere appears, it is in the habendum,.

    The meaning which does appear there is in no sense inconsistent with the devising clause. Hawkins, 203, 204; 1 Redfield on Wills, 473, sec. 4; Ib., n. 6; Frogmorton v. Holly, day, 3 Burr. 1623; Hawkins, 136, 137, 215.
    As to dying without issue: Hawkins, 215; Redfield on Wills, 706.
    An express estate for life to a devisee may be enlarged by implication. See authorities already cited; King v. King, 12 Ohio, 300. If, then, an express estate for life may be enlarged by implication, it may assuredly be enlarged by express words. Hawkins on Wills, 75.
    The language in this will, -“decease . . . without issue,” does not mean “ a general failure of issue,” but does mean failure of issue living at the time. Parish’s Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St. 320; Hawkins, 176, 214; 3 Greenleaf's Cruise, 444.
    II. If I am right in the construction of this will, there was no life estate in testator’s children, and no remainder to their heirs, issue, children, or descendants. Consequently the rule in Shelley’s ease has no bearing on it. But if the other side is right in supposing the will to' devise a life estate to testator’s children, with remainder in fee or intail to heirs, children, issue, or descendants, the rule in Shelley’s case is in point.
    The same remark is true of section 53 of the wills act (2 S. & C. 1626), which is identical with section 47 of the wills act of 1840 (Swan’s Stat. 319), and cbmmonly spoken of as abolishing the rule in Shelley’s case. The present will, having been made in 1831, can not, of course, be affected by a statute passed long after the title vested under the will.
    As to whether the rule in Shelley’s case is operative in Ohio, see 12 Ohio, 471; 2 S. & C. 1626, Judge Swan’s annotation.
    The rule in Shelley’s case has been used as a rule of construction, like any other rule, to ascertain the meaning of a testator. In this sense I do not understand it to have been abolished or impaired. It has also been used as an imperative rule of property, to be enforced even as against the intention of testator. In this latter sense it has been abolished by the Ohio statute, and extensively elsewhere.
    “ The great difficulty has been,” says Kent, “ to settle' where the rule, and where the intention in opposition to the rule, shall prevail.” 4 Kent, 721. Nearly two years after Reddish’s will vested his estate in somebody, our supreme court held the rule in Shelley’s case to be in force in Ohio, as an arbitrary rule of property. McFeeley’s Lessee v. Moore’s Heirs, 5 Ohio, 465. More than ten years afterward, December 7, 1843, after arguments unusually full and elaborate, Armstrong v. Zane, 12 Ohio, 287, and King v. Beck, 12 Ohio, 390, were decided. In Armstrong v. Zane, the court expressly asserted the rule as a rule of property, and such was clearly the ground of decision in the other cases. It is quite clear, therefore, that if an application had been made to any court in Ohio, having jurisdiction to construe Reddish’s will, any time within fifteen years of its taking effect, the rule in Shelley’s case, so far as pertinent, would have prevailed in its arbitrary sense.
    Indeed, all the cases decided in Ohio on the basis of the rule, wmre cases where the language construed would have caused more difficulty as to the real intention, than is caused by the language in Reddish’s will.
    In Greenleaf’s Cruise, he says the rule, “ as now settled and expounded by modern decision,” has the following qualification, viz : “ Unless it clearly and unequivocally appear that the words (i. e., heir or heirs of the body) arc used merely as descriptio personarum.” 2 Greenl. Cruise, 305, top paging 381, n. 1. The note also states that Judge Story regarded the rule in the United States as a rule of construction.
    The will of Reddish, in the devising clause, was broad enough to carry a fee. The general frame of it was iu accord with the idea of a fee in the first takers. Then in the habendum clause, “ to have and to hold to them during their natural lives and to their heirs,” without break, punctuation, or restriction of meaning; then the devise over is on condition of first devisees “ ilying before maturity,” which language would by itself enlarge a life estate to a fee simple by implication. Then another branch of the condition, “ dying without issue,” expressly limited to a particular time, and yet farther by legal construction, not meaning a geueral failure of issue, therefore, never at any time held to restrict a fee, but always to make a condition for the devise over.
    There is nothing in the will which, by recognized rules of construction, can limit the fee simple, which was clearly given in the devising clause, and again in the habendum. Besides this, the devise over is unmistakably a fee given in substitution of the fee first given to testator’s children, in case that fee should be defeated by the happening of specific conditions. 1 Redfield on Wills, 421.

      Fdward Colston, also for plaintiff in error:
    We insist that Stevenson Reddish took a fee simple by the will of his father, Thomas Reddish, in the property in question, and that the children of Stevenson, who are the plaintiffs in this suit, took nothing under their grandfather’s (Thomas Reddish) will. That by said will the children of Stevenson acquired no title whatever in or to the lands and other property devised to Stevenson.
    The words “ during their natural lives and. to their heirs,” taken alone will convey a fee, by force of the rule in Shelley’s case. See Fearne on Remainders, vol. 1, (marg.) p. 149, par. 20; Ib., (marg.) p. 193, last par. (3d Amer. from 8th Bond, ed.); Preston on Estates, 263, ch. 111, vol. 1; 4 Kent’s Com. (marg.) 215; Williams on Real Property, top p. 248 (marg. p. 234) et seq.; Law Library, 7th vol. (Essay on Disposition of Real Estate); McFeely’s Lessee v. Moore’s Heirs, 5 Ohio, 465; Armstrong v. Zone’s Heirs, 12 Ohio, 287; Beck, Adm’r of King, v. King’s Heirs, 12 Ohio, 390.
    Section 53 of our present wills act (S. & C. 16, 26), which has abolished the above rule in this state, so far as its application to devises is concerned, was passed March 23, 1840 (see 1 Curwen, 691; sec. 47 of the wills act of 1840), nine years after the making and probating of this will.
    This will can not therefore be affected by this subsequent act of the legislature. De Peyster v. Glendenning, 8 Paige’s Ch. 295, 804; Shoonmaker v. Sheely, 3 Hill (N. Y.), 165 ; 12 Ohio, 471.
    It is perfectly clear, then, that if the testator had stopped at the word “ heirs,” that if the will contained no other words descriptive of the quantity of interest than the words “to have and to hold during their natural lives, and to their heirs,” that each child, Sarah and Stevenson Reddish, would have taken a fee in their respective devises.
    It remains to considey what effect the words immediately following the word “ heirs ” have.
    We deny that these words, “and in case of the decease of both of my aforesaid children before they be of maturity, according to law, and without lawful issue,” which introduce the ulterior devise, have the effect of impairing the meaning of the word “ heirs” occurring in the prior devise, so as to exempt that prior devise from the operation of the rule in Shelley’s case. On the contrary, that these words do not refer at all to the quantity of estate bestowed by the first devise, but that they simply designate a contingency on the happening of which the estate created by the first devise, whatever is the quantity of that estate, shall pass over. The contingency named is the decease of both Sarah and Stevenson under maturity according to law —.that is, under twenty-one, and without lawful issue. 1 Eearue, 149, 193; 4 Kent’s Com. 214 et seq.; 5 Ohio, 465; 4 Preston on Estates, 273-284.
    As to the rule of construction where the testator uses legal words, see Eearne Con. Rem. 168 et seq.; and the multitude of cases there cited in margin; 2 Jarm. on Wills, top p. 204 (marg. p. 277) et seq.; Ib., top p. 526 (marg. p. 744), 17th rule of construction; 2 Williams’ Ex. (2d Amer. ed.) 788, 789; Ide v. Ide, 5 Mass. 500; Mowat v. Carow, 7 Paige, 328; Lord Alvanley, in Poole v. Poole, 3 Bos. & Pul. 620; Lord. Eldon, in Jesson v. Wright, 2 Bligh, 56; Lord Redesdale, in S. C.
    As to the construction to be given to the words “ dying without issue,” see 2 Jarman on Wills, 301, 418, 428; Williams on Real Prop. 210, n. 1; Parish’s Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gregory, 12 Ohio St. 320.
    As to what is meant by “ heirs,” see 2 Jar. on Wills, 204, top paging; 1 Fearne on Con. Rem. 149; 4 Pick. 198, 205; 2 Pick. 243; 19 Barb. 500; 31 Wend. 521; King v. Beck, 15 Ohio, 559; Stevenson v. Fvans, 10 Ohio St. 307; Collier v. Collier, 3 Ohio St. 369; Niles v. Gray, 12 Ohio St. 320.

      Matthews, Ramsey & Matthews, for defendants in error:
    It is contended, on behalf of the defendants in error, that Stevenson Reddish had a life estate merely, with remainder in fee to the issue of Stevenson Reddish, who should survive him (or, what would be a legal equivalent under our statutes to restrict entailments — a fee tail in Stevenson Reddish), with remainder over by way of ex-ecutory devise in the event that he should die under age, and without issue surviving him, to the surviving children of the testator’s brother and sister. Parrish’s Heirs v. Ferris et al., 6 Ohio St. 563.
    It may be, that, if the devise had been in these words, “ I give and bequeath to my son Stevenson the following real estate,” and it had stood alone, without any qualifying context, the estate of Stevenson would have been a fee simple. But that is not the case. The language cited is followed by the immediate context, “ each of my aforesaid children to have and to hold the same during their natural lives, and to their heirs, and in case of the decease,” etc. The plain, obvious, popular meaning is that he shall not convey it away from his children. When that life estate should be ended, he then gives it to the heirs of his son Stevenson; and who he meant by his sou’s heirs is evident enough, for he further provides, that if his son should die under age and without surviving issue, the estate intended for those heirs should go to the children of his brother and sister. His son’s heirs, then, for whom he desires to make provision, are his son’s issue living at his son’s death. He provides first for his son; then for his son’s issue, if he leave any; then, if he dies without leaving any, for his nephews and nieces.
    This, we submit, is the natural construction of the will —what would occur to plain people, looking at it merely to discover its meaning, and taking its language in its usual and ordinary sense, as opposed to the artificial and technical interpretation forced upon it by the use of arbitrary rules, applied in a cheap, mechanical, and inconsiderate way. Smith v. Hawkins, 27 Ohio St. 371; Harkness v. Corning, 24 Ohio St. 416.
    If, in the case at bar, the words “ and to -their heirs,” occurring after the limitation to the testator’s son and daughter, “ during their natural lives,” be restricted to mean “ heirs of their bodies,” or “issue,” then, the estate devised would be an estate tail in Stevenson Reddish, executed by our statute to restrict entailments, in his issue, tlie plaintiffs below, as an estate in fee simple. Roddy v. Fitzgerald, 6 H. L. C. 823. And such, a construction is supported by the consideration, elsewhere urged, that, as the ulterior limitation over was to take effect only on the death of the testator’s son under age, and without issue, the intention was manifested that the issue of Stevenson were the persons described as his heirs. If so, it is immaterial whether they take by descent or by purchase. In the former case, their father had an estate tail; in the latter, an estate for life merely. The result, so far as this controversy is concerned, is the same either way.
    We can understand that a devise for life maybe enlarged to an estate tail, by implication, arising in consequence of a limitation over or a dying without issue living, and before attaining a particular age ; because, in such a ease, the intention of the testator to make the issue of the first taker an object of his bounty is plain; and such an intention upon the limitations in Reddish’s will would be strictly executed by the operation of our statute of 1811, to resti’ict entailments, which would make Stevenson Reddish the first donee in tail, but for his life only, perfecting the fee absolutely in his issue.
    The plain and manifest intention of the testator, to limit to his son Stevenson an estate for his life only, is expressly declared, and can be defeated only, if at all, by the application of the rule in the Shelley case.
    'Whether that application will be made, depends on the effect this court will give to the decision in the case of King v. Beck, 15 Ohio, 559. According to that decision, it is impossible to distinguish this case from that.
    Since the passage of the act of 1840 relating to wills (sec. 47), no controversy could arise upon such limitations as are contained in Reddish’s will.
    Hid the testator use the words in question for the purpose of giving to his son and daughter, in case they attained full age, the absolute power of alienation; or did he use them to describe a class of persons to take the estate after the déath of his son and daughter? Now, there is nothing whatever in the will, other than these very words themselves, to show that he meant to enlarge the estate of his son and daughter beyond an estate for life; and the use of the words descriptive of the estate given to them, “to have and to hold the same during their natural lives,”is entirely inconsistent with such a result. A testator inops consilii, may be supposed to have used the words, “and to their heirs” in a vague and indeterminate sense, for the technical and popular usage, to which they are subject, differs and varies widely; but the phrase, “during their natural lives,” as applied to an estate in lands, is not capable of ambiguity. The technical and popular meaning are identical and uniform.
   Scott, J.

In the construction of a will, it is well settled as a paramount rule, in this state, that the intention of the' testator, as gathered from the whole will, must control, when such intention is not in conflict with the law or against public policy. It is also an established rule of construction, that words in a will are to be understood according to their ordinary and legal signification, unless it is manifest from the context, or from other provisions in the will, that the testator has used them in a different sense, and unless the sense in’which they were used is clearly apparent.

Reading the will under consideration, in the light of this latter 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 a fee tail in A., and the woi’d heirs be 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 a dying without issue living at the death of the prior devisee. Parrish’s Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gregory, 12 Ohio St. 320. Still, we should have no hesitation in finding, from the language of the-will before us, that the. testator intended a life estate only for the first devisees, if the sole condition of the limitation over to the nephews aud nieces had been the dying of his children without issue ; and without reference to the time when they should so die. But such is not the language of the will. The testator does not attempt to make any disposition of his property, after the- death of his children, except in the event of the death of both of them before becoming of full. age. And yet it is obvious from the general and comprehensive terms of the residuary clauses, that he was anxious to leave no property undisposed of, which it was in his power to control. If he intended to give his children a mere life estate in the premises, then he purposed, in case either of them should live till majority, and both should die without leaving issue, that the fee of- the land should remain wholly undevised. Eor it is very clear that, in such case, the contingent devise over to his nephews and nieces could never take effect. Had a life estate only been intended for his son, why should the remainder over depend on his death during minority ? Hence, 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 an estate of inheritance in fee simple in the premises devised, which should become indefeasible upon their attaining an age which would render them legally capable of controlling and disposing of it. His scheme of testamentary disposition contemplated his children as the primary objects of his bounty. Should both of them die during minority, and leaving no issue, then he intended the estate to pass over to certain nephews and nieces in fee simple. This purpose he could effect by an executory devise, which should make the estate given to his children defeasible, upon the happening of the contemplated contingency.

But this defeasible character of the estate given to his children, was in no case to affect or defeat their estate “during their natural lives.” It is clear also that he did not intend to prefer the children of his brother and sister to the lawful issue of his own children; for the limitation over is in case bis own children shall die under age, and ‘without lawful issue. But it is to be presumed that he knew the statutes of descent of this state, and was aware that if his children should die under age, and of course intestate, their issue would1 succeed to the inheritance, unless he should otherwise direct. With the statutory rule of descent he was content, and made no provision to the contrary.

If one only of his children should die during minority, leaving no issue, it is to be presumed he knew that his surviving child would, under the statute of descents and distribution, take, as heir, the property devised or bequeathed to the one so dying.

That this would accord with his wishes, is evident from the fact that the gift over is conditioned upon the death oí both his children during minority.

If, then, by taking the words of the habendum, “ and to their heirs,” in their ordinary and legal signification, as words of limitation, defining the extent of the estate or interest in the lands devised (which it is the proper office of a habendum to do) — if, by assuming that the testator meant just what he has said, we,can give full effect to the whole scheme of disposition, so far as it is clearly shown in any and every part of the will, we have no right to conjecture that the testator may have used the word “ heirs,” in a different sense, as meaning children or issue; and thereupon to change the testator’s scheme for one of our own. There is no direct devise of the laud in question to any one except to Stevenson Reddish, and the ulterior devisees, his English cousins, in the event of his dying within age and without issue. The word “heirs” does not occur in the devising clause proper. But defendants in error claim that this word heirs, means children or issue, because the condition of the limitation over is that Stevenson shall die without issue, which could only have been intended for the benefit of his children ; but, as we have said, this implication is rebutted by the provision that the property shall go over only in the event of Stevenson’s death during minority. If he live to be twenty-one, the testator has said, in effect, that the property devised to him shall never go over, -under the will, issue or no issue. This condition could be intended Only for the benefit of Stevenson himself. We can not, therefore, be even reasonably certain that the testator used the word “ heirs” as descriptive of the children that might be born to Stevenson, and to whom he intended to devise the fee simple. Indeed, he seems to have understood the distinction between heirs generally, and children or issue. He uses both words in the same séntence. 'When he speaks of “lawful issue,” he evidently means children; and when he speaks of “ heirs,” why shall we not presume that he means "heirs'generally, as the word usually and legally imports ? There could be no room for a possible doubt on this question, were it not that the testator has said that his children should have and hold the premises previously devised to them “ during their natural lives .”

These words standing alone, or if followed by the word only, would clearly indicate an intention to restrict the estate previously given in general terms, to a mere life estate. But this expression does not stand alone. His children are “to have and hold during their natural lives, and to their heirs.” Here we find an apparent express enlargement of the estate given, to a fee simple. The reason fbr this form of expression may be learned by looking to the remainder of the sentence, in which there is a contingent devise over. Construing the whole sentence together, we think the meaning of the testator can not be regarded as doubtful.

He intended that each of his children should take an estate in fee simple in the premises devised to them respectively. But he farther intended that this estate should be defeasible, and terminate with “ their natural lives,” in case they should both die before attaining the age of twenty-one years, and without lawful issue. Upon the happening of that contingency no one should take the premises devised, as heir to his children, or either of them, but they should pass to the ulterior devisees under the will.

This construction is in harmony with the general scope of the will. For, after disposing of the real estate specifically described, and which he divides between his two children according to his own judgment, the testator proceeds to give to his children the whole of his remaining property, whether real or personal, to be equally divided between Sarah and Stevenson, when Sarah (the elder) should become of age. Stevenson’s share, upon this division, is to be retained by his guardian until he becomes of age, and then “ the said share to be given immediately up to him, and the functions of the guardian, as also the executor or executors, to cease.”

There can be no doubt that as to all this residuary px’opex’ty, whether real or personal, the childrexx were to be the absolute owners, with full power of control over it, as soon as they would respectively become of age. And yet all this property, as well as the accumulations arising from interest, or the rents of any part of the whole estate, was subjected to the same limitation over, in favor of the same nephews and nieces, and upon the same conditions, as in the case of the lands and lots specifically described and divided by the testator between his children. We see no reason to doubt that he intended their title to the property specifically devised to be equally absolute and indefeasible, if either of them should live to be of full age, or should leave lawful issue.

Such would, very clearly, be the construction of the will under the rule in Shelley’s case. But, by the 47th section of the wills act of 1840, and the corresponding 53d section of our present wills act, it is declared that “ when lands, tenements,orhereditaments are given by will to any person for his life, and after his death to his heirs in fee, or by words to that effect, the conveyance shall be construed to vest an estate for life only in such first taker, and a remainder in fee simple in his heirs.” The rule of construction prescribed by these statutes, was intended to give a controlling effect to the clear intention of the testator, and to forbid the application of the rule in Shelley’s case, when such application would defeat the manifest intention of the testator. Were we to regard this statute as applicable to wills which, like the one before us, took effect before its passage, we should still he of the opinion that the language of the will under consideration is not such as to bring it within the class of cases contemplated by the statute.

We think the judgment of the court below should be reversed, and the petition of the plaintiffs, in the court below, be dismissed.