author: Minsharr, J.

text:
    Doyle v. Doyle, Jr. et al.

      Statutory construction— Wills—Descent and distribution—Election by widow— When husband dies intestate as to her.

    1. That which, is plainly implied in the language of a statute is as much a part of it as that which is expressed.
    2. A widow is not deprived of a distributive share of the personal estate of her deceased husband, by his leaving a will in which he disposed of all of it to others, without making any provision for her. As to her in such case, he is regarded as dying intestate
    (Decided May 9, 1893.)
    Error to the Circuit Court of Summit county.
    The facts are stated in the opinion.

      Baird & Voj'is and John C. Hale, for plaintiff in error.
    For more than forty y^ars it has been the settled opinion of the bar of Ohio that a widow, not named in the will of her husband, is entitled to the distributive share of his personal property. It is a fact that Mr. Doyle died in the belief, induced by the opinion of good lawyers he had con-suited, that the plaintiff in error would take a distributive share of his personal property. The executors were of that opinion. In this case the executor, who is a sound and careful lawyer, as above stated, has already made several distributions of portions of the personal estate of his testator, and in each instance has paid Mrs. Doyle a third as her distributive share, under the opinion that she was entitled thereto. ■ This opinion has obtained the importance of a “rule of property” and should not be declared erroneous unless it violates fundamental principles and is not only plainly wrong, but mischievous in its consequences. Arrwosmith v. Marmoning, 42 Ohio St., 254.
    A correct solution of the question here involved must be determined by a proper construction of the statutes of the state, read in the light of the common law of Ohio.
    In construing these statutes, the court should avoid, if possible, absurd consequences, injustice, or even great inconveniences. Or, as stated by Justice Field, in United States v. Kirby, 7 Wall., 486, “All laws should receive a sensible construction,” etc. Moores. Given, 39 Ohio St., 661; Sawyer v. State, 45 Ohio St., 343; Revised Statutes Section 4176; Conger v. Baker administrator, 11 Ohio St., 1, Sections 5963 and 5964, of our statutes, provides a mode in which an election may be made. It is plain from section 5963, that the distributive share of the widow, in the personal estate of her husband, was as much an absolute right, as tbe right of dower; both are placed upon the same footing.
    But the intention and understanding of the legislature upon this subject, more plainly appears from the language of section 5964. Nothing can be plainer than that the legislature intended by this section to preserve to the widow her right to a distributive share of the personal estate of her husband, in all cases in which she received no portion of the. estate under the will. If there is no will she takes her distributive share of the estate. If there is a will, and provision is made for her in it, and she fails to elect to take that provision, then she has the distributive share. If there is a will and no provision is made for her, then she takes her distributive share.
    It is not a strained or unnatural construction to hold that, in all cases where there is a will and a failure to take under it by the widow, she holds a distributive share of the personal estate of her deceased husband. It is the obvious meaning of the statute, and the only sensible construction that can be given it. There is a will and no election to take under it, and no claim made on account of it, and therefore the widow has a legal right to a distributive share of the estate.
    The legislature, dealing with the rights of the widow in an estate of her deceased husband, have designated the share she shall receive in case there is no will, and then regarding that as a right secured to her, of which she can only be deprived by her election, provision is made for such election; but if none is made then the right to the distributive share is undisturbed. It is not possible that the legislature intended the absurd result that must follow from the construction contended for by the opposing counsel.
    The statutes of 1840 and 1846 remained unchanged until the revision made by the legislature in 1852, when a statute was enacted in substantially its present form. There is nothing in this revision indicating the intention of the legislature to in any way abridge or change the rights of the widow to a distributive share of her husband’s estate, whether he died testate or intestate. Indeed, we have not the slightest doubt that the legislature intended by that provision to preserve to her every right which she then enjoyed under the statutes of 1840 and 1846, and, unless absolutely compelled to give a different construction, the statutes should be so interpreted as to give effect to that intention and purpose. State v. Commissioners of Shelby County, 36 Ohio St., 326; The City of Warren v. Davis, 43 Ohio St., 447.
    We submit that it is apparent from this legislation that it was the intent to place the right of the widow to a dower and a distributive share of her deceased husband’s personal estate upon the same basis, except that the former was an estate for life and the latter unlimited. This fact is fully recognized by this court in the case of Bane v. Wick, 14 Ohio St., 505; Tracy v. Carr, 2 Ohio St., 431; Bishop; Written Law, Section 93.
    It shocks the sense of justice to think that a woman, whose husband died leaving a will in which she is not named, is less favored in law than one whose husband left no will or one in which some trifling provision is made for her. We may be certain that any claim of what the law is which shocks the sense of justice is erroneous; that any construction of the statute which shocks the sense of justice is not a proper construction, but one which violates the legislative intent.
    A man is not permitted even before marriage to give away his property for the purpose of defrauding the woman he is about to marry. He is not permitted after marriage to dispose of his property to prevent his wife taking what is commonly called her distributive share after his death. McCammon v. Summons, 2 Disney, 596: Murray v. Murray, Book 8, Lawyers’ Reports Annotated, page 95; Manikee v. Beard, 85 Ky., 20; Thayer v. Thayer, 14 Vt., 107; Edmunson v. Coxy, 7 Viner’s Abr., 202; Smith v. Fellows, 2 Atkyns, 62; Hall v. Hall, 2 Vern, 277; Fairbeard v. Bowers, 2 Vern., 202; Lightfoot v. Golgin, 5 Munford (Va.) 42; 1 Williams on Ex’rs, page 1; Griffith v. Griffith, 4 Har. and McHem, 101, 119, 120; Coomes v. Clement, 4 Har. and J., 480, 483, 484; Williams v. Kelley, 5 Har. and J., 59, 60; Collins v. Cormon, 5 Md., 503, 521 527, 528.

      Newton Chalker, Frederick C. Bryan and Dayton A. Doyle, for. defendants in error.
    Brief of Newton Chalker.

    The sections of the Revised Statutes of Ohio, on which the residuary legatees of Wm. B. Do}de rely, in support of their claim, are: Sections 3111, 3114 and 5914.
    The language of these sections is plain, .broad-and comprehensive; and wTe submit that no other words or language could be employed that could more completely give to the husband full power to dispose of all of his personal property by will, than does the language of these sections.
    The only sections of the Revised Statutes of Ohio, that can be relied upon as authority for the claim of Mrs. Doyle to a distributive share in her husband’s personal estate, are sections 4176, 4163 and 4159. These sections give the widow in this case no authority for her' claim to a distributive share of the personal estate, because they apply expressly and exclusively to the personal estate of intestates. Parker et al. v. Parker's Adm., 13 Ohio St., 95. The legislature has made intestacy of the deceased consort the exclusive ground on which the surviving consort can hold a distributive share in the personal estate of the deceased consort.
    But sections 5963 and 5964, are no authority for the widow’s claim to a distributive share of the personal estate. These sections don’t apply to her case. They apply only to cases in which “provision is made for the widow or. widower in the will of the deceased consort,” etc. But in the case under consideration no provision is made for the widow, in the will of the deceased consort. The legislature' had the power, and saw fit to make, in these sections, the right of a widow and widower to elect to take a distributive share of the deceased consort’s personal estate, dependent upon two certain named conditions precedent. Those conditions precedent are, the making of some provision for the widow or widower in the will of the deceased consort, and the failure of such widow or widower to accept the same. Upon these conditions alone is based the widow’s right tO' take such distributive share. These conditions precedent do not exist in this case, and her right to interfere with the will of her husband, by taking personal property which he had willed to others, does not exist. The language of our Supreme Court in another will case in reference to this same section, applies to this case. Parker v. Parker's Adm., 13 Ohio St., 95, sec. 104. There is no other section of the. statute that has any relation to this subject.

      The only hope of plaintiff in error, lies in disregarding the usual, ordinary meaning of the language of this “positive provision of the statute,” and substituting therefor some unusual meaning favoring the position, and in calling this the spirit of the statute “which giveth them life.”
    If counsel for plaintiff in error need any other aid than the plain meaning of the plain language, to find the spirit of sections 3111, 3114, 5914, 5963 and 5964, of the Revised Statutes, above quoted, they will find that aid in the following authorities: 4 Kent’s Com., 502; 1 Jarman on Wills, 145; Ibid, 271, foot note 4; Padfield v. Padfield, 78 Ill., 16; Gardner v. Gardner, Exr., 13 Ohio St., 426, 430; Bane v. Wick, 14 Ohio St., 512, 513; 1 Jarman on Wills (5th American, from. 4th London edition), page 146, note 2; book 2, chapter 32, Blackstone’s Commentaries; Chase’s Statutes of Ohio, vol. 1, p. 190; Roads v. Symmes, 1 Ohio 281; Bloom v. Richards, 2 Ohio St., 387; 1 Chase’s Statutes, page 571; 2 Chase’s Statutes, page 929; 3 Chase’s Statutes, 1785. From which language as well as from the principle of. the maxim, “ Expressio unius est exclusio alterius,” it appears conclusively that the legislature by these enactments intended to grant and did grant to testators power to will away their property, both real and personal, unlimited, except only in the two particulars of dower of their widows and the rights of creditors.
    This last of fifth wills act was in force until the year 1840, when the law was again revised and enlarged on this subject. Thus it appears clear that, on the subject of testamentary disposition, the law in the North-West Territory from 1787 to 1802* and in the state of Ohio from 1802 to 1840 was the same as was the law of England on the same subject in the time of Blackstone, above quoted. On March 23, 1840, the sixth wills act of Ohio was passed. 1 'Cur-wen’s Stats., p. 691.
    This section is the first one in the legislation of Ohio that gave to a widow, in case she failed to elect to take the provision made for her in the will of her husband, such share of his personal estate as she would be entitled to had he died intestate.

      On the same date, March 23, 1840, the legislature passed' an act relating to the administration of estates. 1 Curwen’s Stats., pp. 708 and 744.
    Under the above five sections of the statutes of 1840, some of the provisions of which were then new, but all of which, especially in regard to the question now before this court, were practically and substantially, both in meaning and language, the same as the present statutes of Ohio, first above quoted, on the same subject, a question arose in the minds of the expounders of the law of those times; a question so important and so serious that it was deemed necessary to appeal directly to the legislature for a declaration of their meaning of said section 46. 2 Curwen’s Stats., p. 896.
    The above act was not an amendment of section 46 of the act of 1840. It purports simply to declare what the meaning of that section was, and although this declaratory act of 1842 was repealed in 1843, such repeal could not change the meaning of that section nor the intention of the legislature in passing it. These were established facts and could not be changed. This declaratory act shows that the law of Ohio up to 1842, and also as long as the act of 1840-was in force, was the same as the common law of England in the time of Blackstone above referred to, permitting a married man to will away all of his personal property as he saw fit.
    As a further evidence that such was the law of Ohio up to the year 1846, the legislature of Ohio, on February 28, 1846, amended said section 46 of the laws of 1840. 2 Cur-wen’s Stats., 1255. By this amendment the hitherto unbroken law of Ohio on this subject was changed. This amendment put a new restriction upon the testamentary power of a husband.
    Now it is evident that the legislature of 1846 understood that a married man could will away from his wife all of his personal property, and that in that event she could not hold a distributive share thereof, otherwise they* would never have passed this amendment. Hartshorne et al. v. Ross et al., 2 Disney, 444 et seq.; Bane v. Wick et al., 14 Ohio St., 507, 512.

      But on May 3, 1852, the legislature expressly repealed the wills act of 1840 and also the aforesaid amendment of section 46 thereof, and all other amendments thereof, and passed the seventh wills act of Ohio.
    But the aforesaid amendment of 1846, of said section 46, of the wills act of 1840, was not re-enacted; nor was the provision therein relating to a widow’s right to a distributive share of her husband’s personalty, when he makes no provision for her in his will, nor anything like it re-enacted in any section of the will’s act of 1852, nor in any other legislation in Ohio up to the present day. . Hartshorn v. Ross, 2 Disney, 444.
    This brings the above sections 1, 43 and 44, of the wills act of 1852, and section 180 of the administration act of 1840, down to the Revised Statutes of 1880, without change, on the point before the court in this case.
   Minsharr, J.

William B. Doyle having executed his will, died August 6, 1890, leaving a considerable estate in real and personal property. By his will, after making a bequest of $1000, to a daughter, and a like sum to the children of his brother, he disposed of all the residue of his property real and personal to his other children, making no provision whatever for his wife, Douisa K. Doyle, who .survived him. The estate being substantially settled and ready for distribution, the executor, one of the sons .of the testator, commenced a suit in the common pleas of the county for instructions as to the distribution of the personalty, all interested being made parties. The petition avers that the widow being cited by the probate court, “refused to take under the will;” that some of the children claim that, as no provision is made for her in the will, the widow is entitled to no portion of the personalty on distribution, and have requested him, if there is any doubt about the justice or legality of the claim, to have it settled in the proper legal tribunal.

The common pleas held that she is entitled to the same portion of his personalty that she would have been, had her husband died intestate, that is, one-half of the first four hundred dollars, and one-third of the balance on distribution. On appeal, the circuit court held otherwise, and directed the distribution to be made to the legatees as provided in the will. The widow prosecutes error to reverse this judgment, and for a judgment that, as to her, the distribution should be made under section 4176, Revised Statutes, as if her husband had died intestate.

The question depends upon the proper construction of this section, found in the chapter of the Revised Statutes regulating the descent and distribution of the estates of persons dying intestate, read in connection with certain sections of the chapter regulating the making and construction of wills. These sections so far as applicable to the question are here inserted for convenience in its discussion:

“Section 4176: When a person dies intestate and leaves no children or their legal representatives, the widow or widower shall be entitled, as next of kin, to all the personal property which is subject to distribution upon settlement of the estate; but if the intestate leaves any children or their legal representatives, the widow or widower shall be entitled to one-balf of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution.”

“Section 5963: If any provision be made for a widow or widower in the will of the deceased consort, the probate court shall, forthwith, after the probate of Such will, issue a citation to such widow or widower to appear and elect whether to take such provision, or be endowed of the lands of the deceased consort and take the distributive. share of the personal estate; * * * but the widow or widower shall not be entitled to both, unless it plainly appears by the will to have been the intention that the widow or widower should have such provision in addition to the dower and such distributive share.”

“Section 5964: The election of the widow or widower to take under the will, shall be made in person, in the probate court of the proper county, except as hereinafter provided; and on the application of a widow or widower to take under the will, it shall be the duty of the court to explain the provisions of the will, the rights under it, and by law in the event of a refusal to take under the will. The election of the widow or widower to take under the will shall be entered upon the minutes of the court; and if the widow or widower shall fail to make such election, the widow or widower shall retain the dower, and such share of the personal estate of the deceased consort as the widow or widower would be entitled to by law in case the deceased consort had died intestate, leaving children. If the widow or widower elect to take under the will, the widow or widower shall be barred of dower and such share, and take under the will alone, unless as provided in the next preceding section; but such election by the widow or widower to take under the will shall not bar the right to remain in the mansion of the deceased consort, or the widow to receive one year’s allowance for the support of herself and ' children, as provided by law, unless the will shall expressly otherwise direct.”

The argument of the residuary legatees against the claim of the widow to one-half of the first four hundred dollars and one-third of the remainder of the personal estate of her deceased husband on distribution, is based upon a construction given to the language of the foregoing sections, and the power given him by statute to dispose of all his real and personal estate by will. Section 5914 Revised Statutes. Noting the fact that section 4176, giving her this portion of her husband’s estate, is limited to where he dies “intestate” leaving children, and that sections 5963 and 5964, of the chapter relating to wills, apply in terms only to where provision is made for her in the will of her deceased husband, they claim, that as he did not die “intestate,” and made no provision for her in his will, she is within the provisions of neither of these sections, and is, therefore, entitled to no part of his personalty subject to distribution, since, in the exercise of the power given him by statute to make a will, he has bequeathed it all to his children.

We do not accept this construction. A careful consideration of the language of these sections shows, as we think, a clear recognition of the right of a widow to a portion of the personalty of her deceased husband on distribution, that is beyond his power to affect by any will he may make, unless she assent to it. • And this is in accordance, not only with the general understanding on the subject, but, also, with the liberal policy that has always prevailed in our law toward the widow.

The only ground for any question as to her rights, arises where the husband makes a will, disposing of all his property to others, without making any provision for his wife. Where he makes no will—dies intestate leaving children,' the right of the widow to one-half the first four hundred dollars, and to one-third of the remainder of his personalty, subject to distribution, is secured to her by the provisions of section 4176; and this seems to have been the law from the formation of the state. Where he makes a will containing ■ a provision for his wife, she is not compelled to accept the provision so made, but may renounce it and take under the provisions of section 4176, as if her husband had died intestate. But where provision is made for her in the will of her deceased husband, the statute requires that she shall be cited by the probate court to elect whether she will take such provision “or be endowed of the lands of the deceased consort and take the distributive share of the personal estate;” and it is in the language of the statute regulating • this subject, that we get the clearest recognition of the independent right of the widow to a distributive share of the personal estate of the deceased husband, a right that she may renounce, but of which she cannot be deprived by his will. Why cite her to make an election, if she has not a right at law which she may retain if she chooses? No election can be made by any one between something and nothing. There is no alternative. The term necessarily connotes at" least two things between which a choice can be made. Hence the requirement “ to appear and elect,” necessarily implies that the widow has a right at law to a distributive portion of her deceased husband’s personal estate, which, she may retain or renounce at her election. But again the language is, “if she shall fail to make such election” she “shall retain her dower and such share of the personal estate” as she “would be entitled to by law,” had her husband died intestate; and finally if she elect to take under the will, she “shall be barred of her dower and such share,” unless it plainly appears by the will to have been the intention that she should have both. One cannot in any proper sense, be said to retain that which he does not possess, nor to be barred of it by electing to take something else^ So that the language employed in these two sections, regulating the matter of her election, import as plainly as language can make it, that the widow’s right to a distributive share of her deceased husband’s personal estate, exis'.s at law, and is not dependent, either upon his dying intestate, or upon his making some provision for her in his will, where he dies testate. That which is plainly implied in the language of a statute, is as much a part of it as that which is expressed. Endlich Interp. Stat. §417, finis; Cincinnati v. Oliver, 31 Ohio St., 377. No statute should be so construed as to lead to an absurd result. A contrary construction leads to this: That if a husband makes any provision in his will for his wife, however small, and dies leaving children, she may renounce this and take her distributive share of his personalty, as if he had died intestate; but if he makes no provision for her, then she can receive nothing as a distributee. This could not have been the intention of the legislature, and can only be arrived at by the most rigid adherence to the letter of the statute, and a total disregard of the intention as disclosed by the language, and the liberal policy of the law on the subject. Qui haeret in liter a, haeret in cortice. Courts are not confined to the letter of the law in giving it a construction. A statute must be construed with reference to the subject matter of it, and its real object and true intent. Gholson & Okey, Dig. 490. The evident understanding of the legislature of the case where a husband dies leaving a will in which no provision is made for his wife, is, that as to her he dies intestate, and she takes a distributive portion of his personalty under the provision of section 4176. No citation is required in such case, for nothing being given her by the will, she can make no election between its provisions and her rights at law, and she takes the latter under the provisions of the above section, as the widow of one who, as to her, died intestate,

By the statutes of Kentucky a widow, when not satisfied with the provision made for her in the will of her deceased husband, may renounce the same, and is theii entitled to such share of his personal estate as if he had died intestate; but if she makes no renunciation, she takes no more of his personal estate than is given her by the will. In Cummings, Ex'r, v. Daniel et al., 9 Dana, 361, no provision had been made in the will of the testator for his wife. Pie left a considerable personal estate which he devised to his own kindred. The widow made no renunciation, and the legatees claimed all. The court said: “It is very clear that the renunciation contemplated by the twenty-fourth section can have application only to cases in which some provision has been made for the wife by the will of her deceased husband. * * >;< * But wjien no provision is made for her by the will, there is nothing to release or renounce. And to require a release or renunciation in such a case, would be to require a vain and idle act, which could accomplish no object, as there is nothing upon which the release or renunciation could operate, and which is not enjoined by the letter or spirit of the section.” Then referring to the two sections of the Statute, and the claim based upon the'r letter, that the widow could take nothing under either, said: “Though the literal import of the two sections may tend to such a conclusion, we cannot believe that such is the spirit of the enactments, or was within the contemplation or intention of the legislature. * >¡í * We cannot believe that the legislature intended that where something was left to her (the widow), by will, she might release, and throw herself upon the provision made and intended to be secured to her by law; but where nothing was left to her by will, that she was entitled to nothing by law.” And finally held that, “in such case, as to the widow, there is an intestacy, there being no provision made for her by the will, and she may, as in the case of intestacy, betake herself to the provision made for her by the law.”

It seems that the wills act of 1840 first gave to the widow a share of the personalty of her deceased husband, where she failed to make an election on being cited. In 1842 an amendment was made to the effect, that nothing in the act of 1840 should be so construed as to vest in the widow-personal estate bequeathed by the husband to other persons; but this amendment was repealed in the following year; and the act remained without change in this regard until 1846, when it was so amended as to provide, that on the failure of the widow to elect, “or if no provision be made for her in the will of her husband” she should retain her dower “and such share of the personal estate” as if her husband had died intestate. In the revision of the wills act made in 1852, this provision was dropped; and there is no substantial difference between the act as revised in 1852, and the subsequent legislation on the subject. Considerable importance is attached to this omission by counsel for the residuary legatees in his argument. Why this clause was dropped, appears, however, from a reason that would readily occur to most minds: If the husband could not disinherit his wife by giving her something, he could not by giving her nothing; and was dropped from the apparent absurdity of citing a widow to elect between the provisions of a will that gave her nothing, and her rights at law; and not from any disclosed purpose of narrowing the rights given her under the previous legislation.

The right of the widow, in any event, to a portion of her deceased husband’s personalty, subject to distribution, seems so just and reasonable, as hardly to have been questioned since the act of 1840. The author of a note to Walker’s American Raw, in the edition of 1869, p. 249, in discussing the liberal policy of our law towards the wife as contrasted with that toward the husband, says: “She can, by will, deprive him of any share of her personalty; he cannot, in any way, deprive her of her thirds.” We are aware of no. intimation to the contrary at any later or earlier time. In the case of Hartshorne v. Ross, 2 Disney 15-26, decided in 1859 by the Superior Court of Cincinnati, it was held, that the right of a widow to all the personalty of her deceased husband who died testate, leaving no children, was not limited to the undisposed of property after paying legacies, but included the whole to the exclusion of legacies. This decision was not placed on the ground that he had made provision for her in his will, but that her interest in his personalty subject to distribution, was such that she could not be deprived of it by his will. Judge Storer, in decidiug the case at special term, said: ‘ ‘ There can be no difficulty, we think, in arriving at the conclusion that it is the intention of the statute to provide for the widow, at all events, from her husband’s estate; to allot to her a certain portion of his personalty, in addition to her ordinary interest in the realty, that is not to be affected by any disposition he may make by his will. If he die intestate, there is manifest propriety that she should receive a liberal allowance; and should he devise his estate, without providing as generously for his widow as did the statutes, she should have the option to abide by the will or take her portion at law. The election to receive less than her legal allowance should be hers, * * The husband executes his will, subject to the law in force when it shall take effect, and, therefore, his devisees, cannot complain. He might have cut off his heirs without any token of remembrance. Not so with his wife; her rightis paramount; it depends not upon his kindness, much less his caprices.” He then vindicates this view by a reference to the prior legislation on the subject, and the justice and policy of the law, where, in a country like ours, 'the estate of the husband is, in most instances, “the result of the mutual industry of the husband and wife.” And so, in Bane. v. Wick, 14 Ohio St., 505, where it was held, that the election, of a widow to take under the will, does not bar her right to a distributive share of the personal estate, not disposed of by the will, White, J., said: “But in empowering the husband to dispose of all his estate, by will, the legislature, evidently, did not intend to empower him, against the consent of the widow, to abridge her right to- dower, and a distributive share of the personalty, under the statute in relation thereto.” Then referring to the provisions requiring an election, where provision is made for the widow in her deceased husband’s will, said: “The object was not in case of non-election, to create a new source of title; but to prohibit the power of testamentary disposition, then being created by the act, from being made effectual to impair the rights vested in the widow under the law in relation to dower and distribution. It enabled her, whatever disposition the will made of the property, to set up her title and rights under the law, in opposition to the will, and to this extent defeat its provisions.” The point here made is, that non-election does not create a new sotirce of title in the widow to what she takes by renouncing the provisions of the will—-she simply retains her rights at law. Counsel for the residuary legatees call attention to the fact, that, in each of these cases, the will made provision for the widow; and therefore, claim that what is said in each decision can not apply here. But it will be observed that what is said is a part of the ratio decidendi in each case, and therefore not mere obiter. But if it were otherwise, what was said is entitled to much weight, as the opinion of two distinguished judges, meeting with no dissent at the time, as to the proper construction of the law.

There is nothing anomalous in giving to an owner the right to dispose of his property as he may please during his lifetime, with a restriction upon the power to dispose of it by will. The.power to make a will is not an incident of the jus disponendi. It is conferred by statute; and if the wills act were repealed, all the property of a deceased person would descend and be distributed as provided by law. Hence the extent of the power, what property, and what interest in it may be disposed of by will, and to. whom, may be and is prescribed by statute. No argument, then, against the right of the widow in the personalty of her deceased husband, can be drawn from the fact that the husband possessed unlimited power to dispose of it in his lifetime. Unless he should give it away (which seldom happens and cannot be done in fraud of her rights. Manikee v. Beard, 85 Ky., 20; Thayer v. Thayer, 14 Vt., 107), the exercise of this power can be of no greater prejudice to her, than to himself. Their interests being mutual, they participate alike in the gains and losses until death works a separation, when her right to a portion of the personalty, subject to distribution, is fixed and ascertained by law, independently of any will he may have made.

Judgment reversed, and judgment for the widow.


source: Caselaw Access Project

author: Dickman, J.

license: Public Domain

text:
    Smith, Adm’r v. Loewenstein.

      Perpetual lease—Option of purchase—Equitable conversion.

    1. Upon exercising the option, the equitable doctrine of constructive conversion of real into personal property, is applicable to leases in which an option to purchase the demised premises is granted to the lessee.
    2. Where a lessee of a perpetual lease, with the privilege of purchasing the land at any time, duly exercises the option of purchase after the death of the lessor who is the owner in fee, the conversion of the realty into personalty will take place at the time of exercising the option, and will not relate back to the time of the execution of the lease; and the purchase money, if not required to pay debts or legacies of the lessor, will go to the heirs of the lessor, as between the heirs on the one side and the personal representatives of the lessor on the other.
    3. In the year 1848, W., then a resident of the state of Ohio, and seized in fee simple of a parcel of land situated in that state, leased the same to B. for the term of ninety-nine years, renewable forever. The lease contained a covenant, that upon the payment of the sum of eight hundred- dollars, and all accrued rents, to the lessor, her heirs or assigns, the lessor, her heirs or assigns, would convey the premises in fee simple to the lessee, his heirs or assigns. All the interest of the lessee, thereafter, became vested in B. by mesne conveyances. The-lessor in 1854 married T., and thereafter resided with him in the state of New York until 1861, when she died intestate, leaving her husband and B., a son, her only child and issue, surviving her. Her son died unmarried and intestate in 1872, and her husband died in 1884. The husband and son lived and died residents of the state of New York. In April, 1886, L., desiring to exercise the option of purchase, filed a bill of interpleader, making the administrator of the lessor and of her husband, and also the heirs-at-law of E., the son, and others, parties in the action, as being claimants of the fund. There was no claim made upon the fund for the payment of any debts of the lessor.

      Held: 1st. That the demised premises were not converted into personalty until the exercise by L. of the option of purchase.
    2d. That upon the death of the lessor, the premises were inherited by her son, and upon his death passed by inheritance to his heir-at-law, as real estate, under the Ohio statute of descent, subject to the lease, and to the husband’s estate by the curtesy.
    3d. That upon the husband’s death, the heirs at-law of the son became the sole owners of the premises, subject only to the lease, with the right to the accrued rents and the purchase money.
    (Decided May 9, 1893.)
    Error to the Circuit Court of Hamilton county.

      Stephens, Lincoln & Smith, for plaintiff in error.
    I. The doctrine of conversion is accurately stated by Sir Thomas Sewell, M. R., in the case of Fletcher v. Ashburner, 1 White & Tudor’s Reading Cases in Equity-, 504.
    A large number of English authorities are collected in the note in White & Tudor’s Reading Cases in Equity, vol. 1, page 598. This doctrine is generally received throughout the United States. See the note, page 611, 1 White & Tudor’s Reading Cases in Equity, Hare & Wallace’s edition. Gray v. Hawkins, Adm’r, 8 Ohio St., 449, 453-5; Ferguson v. Stuart’s Ex’rs, 14 Ohio, 140, 146; Craig v. Leslie, 3 Wheat., 563; Turner v. Davis, 41 Ark., 270; Roland v. Miller, 100 Pa. St., 47; Masterson v. Pullen, 62 Ala., 145; 3 Pomeroy’s Equity Jurisprudence, sec. 1161.
    The general doctrine is too well settled both in this country and England to be disputed, nor d'o we understand counsel to dispute it. The only question he raises is as to the time from which the conversion takes effect. Where a direction to sell is absolute, a discretion as to time and manner of sale will not suspend the conversion, but it will take effect from the date of the death in the case of a will, and the date of the contract in case of an agreement. See note to Fletcher v. Ashburner, 1 White & Tudor’s Cases in Equity, Hate & Wallace’s edition, p. 615. Tazewell v. Smith, 1 Rand (Va.), 313, 319 and 320; Masterson v. Pullen, 62 Ala., 145; Curre v. Bowyer, 5 Beav., 6n. (b); 3 Pomeroy, p. 132, sec. 1163; Lawes v. Bennett, 1 Cox, 167; Townley v. Bedwell, 14 Ves., 591; Collingwood v. Row, 3 Jur. N. S., 785; Gooldv. Teague, 5 Jur. N. S., 116; Weeding v. Weeding, 1 J. & H., 424; Ripley v. Waterworth, 7 Ves., 425; Daniels v. Davison, 16 Vesay, 249, 253; Kerr v Day, 2 Harris (Pa.), 112, 114, approving Lawes v. Bennett; 1 Sugdon on Vendors, 8th. American Edition by Perkins, 188; Lewis on Trusts, 7th Edition, 814, and note a; Keep v. Miller, 6 Atlantic Rep., 495; Reynard v. Arnold, L. R. 10 Ch. App., 386; Frayne v. Taylor, 33 Raw Journal, Ch. 228.
    The same doctrine has been twice announced in the same case by the general term of the Superior Court of Cincinnati, in the case of Bookwalter, Adm’r, v. Klein, Adm’r, 1 Cincinnati Raw Bulletin, 100, and in 2 American Raw Record, 347; Baden v. Pembroke, 2 Vernon, 215; Bubb’s case, Freeman’s Chancery, 38; Hill v. Rossegien, 17 Barb., 162, and cases cited; 1 Sugden on Vendors, 8th Am. Ed. (201), and cases cited; In the matter of Everett, 2 Edw., Ch. 597; Moore v. Burrows, 34 Barb., 173; Peytharch v. Havard, 6 Simons, 9.
    The fact that the option to purchase is contained in a lease for ninety-nine years, renewable forever, does not affect the question. In re Crofton, 1 Irish Equity, 204; Goold v. Teague, 5 Jurist. (N. S.), part 1, p. 116. Conversely, the right of the lessee to exercise the option is real estate, and passes to his heir. Hennihan v. Gallagher, 2 U. Can., E. & A., 338; 9 Grant’s Ch. (Canada), 488.
    II. In order to get rid of this line of cases, counsel invokes the rule against perpetuities. His argument is novel. He does not claim that the rule against perpetuities vitiates the option of purchase; on the contrary, he expressly admits that the option itself is not void because it is vested and is a part of the estate of the lessee, but he claims that, by reason of the rule against perpetuities, the contract of purchase completed by the exercise of the option shall not have the effect of converting-the land into personalty. In other words, a valid contract of sale, he says, shall not have the necessary and usual effect of a contract of sale in equity. The court will note, so far as this branch of the argument is concerned, the doctrine of relation back cuts no figure. It is well settled that covenants for the renewal of perpetual leases are valid, notwithstanding the rule against perpetuities. Gray on Perpetuities, sec. 230; Banks v. Haskie, 45 Md., 207.
    However, it would seem sufficient to say that the common law rule against perpetuities has never been the law of Ohio. In its place we have from the earliest times had a statutory provision. Section 4200, Revised Statutes of Ohio. This statute is by its terms confined to réal estate. See Gray on Perpetuities, secs. 738, 740. There would seem to be no limitation in Ohio as to personalty. Section 4200 imposes different restrictions from the common law rule against perpetuities, By it the restriction is not so much a .question of time as a question of persons. McArthur v. Scott, 113 U. S., 340, 382, 383.
    But, to follow counsel in his refinements, an analagous case would be a right of entrjr for condition.broken, limited on a fee. This is not vested until the condition is broken. Gray on Perpetuities, sec. 114. And yet Mr. Gray, much against his wish, is forced to confess that, by the well settled rule in America, such rights of entry for condition broken are not void as offending against the rules against perpetuities. Gray on Perpetuities, sec. 310. Sperry v. Pond, 5 Ohio, 389; Stevenson v. Haynes, 16 Ohio St., 478; Cowell v. Springs, 100 U. S., 55; Goold v. Teague, 5 Jurist, N. S., 116.
    III. With regard to the rents, the heir of the lessor or vendor is entitled to the rents “until the option is declared,” but no longer. 3 Pomeroy Eq. Jur., sec. 1163, p. 132; 1 Sug. on Vendors, 8 Am. Ed. (188), paging at the bottom; Townley v. Bedwell, 14 Ves., 591, especially at 597.
    IV. Assuming that the lessor’s estate was converted into personalty at and from the date of the covenant, the distribution of the purchase money is governed by the law of New York, the domicile of the lessor at the time of her death, and the question arises whether, under that law, it should be paid to the administrator of Hannah Eouisa Townsend, namely, S. W. Smith, Jr., the plaintiff in error, or to the administratrix of Thomas E. Townsend, her husband, the defendant, Eucy E. Townsend, cross-petitioner in error. In this qnestion Mr. Kaufmann’s clients are not interested. We think that the purchase money should be paid to Eucy E. Townsend, administratrix of Thomas E. Townsend. Up to 1867, a husband’s rights in the personal estate of his wife were the same as at common law. Revised Statutes of N. Y., Ed. of 1836, page 37, sec. 79. Compare Eaws of New York of 1867, vol. 2, page 1929, secs. 11 and 79. The husband had the exclusive right to administer upon the estate of his wife. 2 Revised Statutes 1836, page 18, secs. 29 and 30. Section 29 is still the law. See 3 Revised Statutes N. Y., 7 Ed., page 2290, sec. 29. Section 30 was repealed in certain cases in 1867. See Eaws of N. Y., 1867, vol. 2, chapter 782, page 929, sec. 12. By virtue of the doctrine of relation, the lessor’s interest must be considered as having been Converted into money during her life; therefore the husband took possession immediately. But if the lessor’s right to the purchase money is considered as a chose in action, the right of the husband, Thomas E. Townsend, and his administratrix, Eucy E. Townsend, is equally clear. Barnes v. Underwood, 47 N. Y., 351; Whittaker v. Whittaker, 6 Johnson, 112, 117; Lockwood v. Stockholm, 11 Paige, 89 to 91, Westerwelt v. Gregg, 12 N. Y., 202, 205, 206; Gilman v. McCradle, 17 Jones & Spencer (49 N. Y. Superior Court), 463.

      Joshua H Bates, and Henry P. Kaufman, for defendants in error.
    We confidently assert that whatever may be the English rule, there is no American case deciding that the exercise of the lessee’s option works a conversion retrospectively as of the time of making the lease, so as to divest the interest of the heirs once vested. Gilbert v. Port, 28 Ohio St., 276.
    Does the privilege of purchase given in the lease work a conversion of the realty into personalty? It does not do so from the time of the granting of the lease, for the legal title with the right to receive rents, the right to enter for condition broken, and all other rights of the owner in fee. descends to the lessor’s heirs, subject to the rights of the tenant. If the option is never exercised, no question can arise; yet it is claimed that the exercise of the option works a conversion as of the date of the lease.
    The doctrine of conversion in equity rests on the maxiin that equity considers done that which ought to have been done. The maxim means that equity looks through the form at the substance. The formal transfer is, in the eye of absolute justice, immaterial; the agreement is the all important matter, but in this case of an option there is no meeting of the minds. Edwards v. West, L. R. 7 Ch. D., 858; Gilbert v. Port, 28 Ohio St., 276.
    Conversion never takes place unless there is an express and imperative direction to that effect; e. g. a mere power is not sufficient. See White & Tudor, Read. Cases in Equity, notes to Fletcher v. Ashburner, page *989; Evans v. Kingsberry, 2 Rand. (Va.), 120.
    The rule contended for divides the interest in property unnecessarily. It gives one man power to dispose of another’s property. It renders the interest of the vendor’s representatives inalienable; it opens the door for collusion between the vendor’s two sets of representatives and the vendee, and one can easily imagine the former bidding against each other to the profit of the latter, or the latter committing acts of forfeiture, or making a sham purchase to benefit either the heir or next of kin. There is not a case in which conversion takes place in violation of the intent of the parties, unless it be this one of options.
    The English cases give no reason for their rule. Rord Kenyon only, in Lawes v. Bennett, urges the purely fallacious one that the exercise of the option is like a condition. In fact, it is the very making of the contract. In Townley v. Bedwell, Lord Eldon intimates his disapproval of the doctrine. Drant v. Vause, 1 Y. & C., Ch. 580; Emuss v. Smith, 2 De. G. & Sm., 722; Edwards v. West,
      L. R. 7 Ch. D., 858; Collingswood v. Rowe, 3 Jur. (N. S.) (Pt. 1), 786.
    In the cases decided by this court, there is either a mutual contract or an absolute direction to sell, or not merely equitable but actual conversion. There is not even a dictum approving Lawes v. Bennett.

    But assuming that a conversion takes place by the exercise of an option in a lease, no authority can be found extending this to the case of an option which may be exercised at any time (as is usual in perpetual leases), and this absence of authority is supported by powerful reasons. It would render the ground rent practically inalienable unless sold in the lessor’s lifetime and this tying up might easily be perpetual. The heir could not convey since his interest would be liable to be defeated by the exercise of the option. Personal representatives would have no interest except what depended on another’s will, a thing of no commercial value, in fact, incapable of legal alienation, being a mere possibility, like the interest of an heir presumptive or apparent. Hart v. Gregg, 32 Ohio St., 502; Griswold v. Frink, 22 Ohio St., 79; Gray v. Hawkins, 8 Ohio St., 449, 453, 455, shows that the intent governs.
    The privilege of purchase may be exercised according to the terms of the lease at any time after the making thereof. It is especially to be observed that however long the leases were, the privilege of purchase in all the cases in which a conversion was held to be effected, was exercisable within a short period, in no case exceeding that fixed bjr the rule against perpetuities. A conversion that gives new parties an interest in the property upon an event that may occur at any time in the future, clearly infringes the salutary rule against perpetuities. Railroad v. Gomm, L. R. 20, Ch. D., 562; Hope v. Mayor of Gloucester, 7 De G. M. & G. 647; Dunn v. Flood, L. R. 25 Ch. D. 629; Jocelyn v. Nott, 44 Conn., 55; Brattle Sq. Church v. Grant, 3 Gray, 142; Rand v. Butler, 48 Conn., 293; Challis Real Property *149; Gray Perpetuities, Sections 319, 320, 321; Marsden Perpetuities, 43, 44; Gray, Section 323.

      The case of Graves v. Graves, 15 Ir., Ch. 357, puts in the strongest manner the objections to the claims of personal representatives. There the question arose almost two hundred years after the creation of the option. II. Bl. Com., *41.
    All cases on conversion admit that the rents up to the time of actual conversion go to the heir. The conversion took place only when the money was paid into court, on the 14th day of March, 1889, and according to the offer of plaintiffs contained in their petition, it could not take place until they had so paid the money. For up to that time their offer is to pay the stipulated rents, not interest on the purchase money.
    We suggest that, if the law of New York is as claimed, the husband can not be considered the owner of this fund by relation, since never existing in his lifetime it could not be reduced to possession.
   Dickman, J.

In March, 1848, Hannah Eouisa Wade leased for the term of ninety-nine years, and renewable forever, unto John James Burnett, a parcel of land situated in the city of Cincinnati, Ohio. The lease, among other covenants, contained the following: “The party of the first part covenants and agrees with the party of the second part, that upon the payment to her, her heirs or assigns, by the party of the second part, his heirs and assigns, of the sum of eight hundred dollars, in addition to all rents that have accrued up to the time of such payment, the party of the first part, her heirs or assigns, shall and will, at the charges in the law of the party of the second part, his heirs and assigns, convey and assure the inheritance or fee-simple of the hereby demised premises unto the party of the second part, his heirs or assigns, or to the heirs or assigns of him or them, who shall have and hold the same free and acquit of rent thenceforth forever.”

All the interest of Burnett in the leasehold, thereafter, by proper assignments, became vested in Henry Eoewenstein and Herman Eoewenstein, two of the defendants in error.

Hannah Eouisa Wade, in the year 1854, married Thomas E. Townsend, and resided with him thereafter in the state of New York, until the year 1861, when she died intestate, leaving surviving her Thomas E. Townsend, her husband, and Edward W. Townsend, her only child and issue. Edward W. Townsend died unmarried and intestate, in the year 1872, and Thomas E. Townsend died in 1884. -Both father and son lived and died residents of the state of New York. Samuel W. Smith, Jr., plaintiff in error, was duly appointed administrator of Hannah Eouisa Townsend, deceased, and Eucy E. Townsend, one of the defendants in error, was appointed administratrix of Thomas E. Townsend, deceased.

Henry Eowenstein and Herman Eowenstein, desirous of exercising the option of purchase granted in the lease, and being in doubt as to who was entitled to receive the purchase money, and empowered to make to them the proper conveyance of the premises, filed their petition, in April 1886, in the court of common pleas of Hamilton county, making the administrator of the lessor and of her husband, and the heirs at law of the son, and others, parties defendant. They asked in their petition, that the defendants be required to set up their respective rights, and offered to pay the purchase money into court, or to the parties whom the court might find entitled to receive the same; and asked that the court compel such parties, upon payment to them of eight hundred dollars and all rents then due on the premises, to execute to the plaintiffs such proper conveyance; and further, that all the defendants be perpetually enjoined from setting up any claim to the premises. No claim was made upon the fund arising from the purchase money and accrued rents, for the payment of any debts of the lessor.

The cause was heard in the court of common pleas, and taken by appeal to the circuit court. The circuit court rendered a final decree, finding, that upon the death of Hannah Eouisa Townsend, the leased premises were inherited by Edward W. Townsend, her son; that upon the death of the son, his heirs became the owners of the fee-simple of the premises, under the statute of descent of the state of Ohio, subject to the lease and to the estate by the curtesy of Thomas E. Townsend; and upon the death of the latter, became the sole owners thereof, subject only to the lease, with all the rights reserved in the lease, including the right to the rents and the purchase money; that the heirs at law of Edward W. Townsend were entitled to receive the whole of the sum paid to the clerk of the court as purchase money and accrued rents; and that the claim of the other defendants to receive any or all of such money and rents, by reason of any conversion in equity of the lessor’s interest into personalty, or for any other reason, was not well taken.

To reverse the judgment of the circuit court, Samuel W. Smith, Jr., administrator, and Eucy E. Townsend, administratrix, have respectively filed their petition and cross-petition in this court. The only question which we need consider is, whether as between the heirs at law of Edward W. Townsend, as the real representative of his mother, the lessor, on one side, and the administrator of the lessor and of her husband, on the other, the fund arising from the purchase money of the demised premises should go to the heirs or the personal representatives. It is contended in behalf of the plaintiff in error, that by virtue of the equitable doctrine of constructive conversion, the option to purchase at a future time granted in the lease converted the real estate into personalty; that the exercise of the lessee’s option after the death of the .lessor was retrospective in .its operation, and converted the realty into personalty as of the time of making the lease; while it is urged on the other side, that the lessor’s estate was not thus converted until the declaration of the option, at which time, the lessor’s estate had become vested in the heirs at law.

The doctrine now most in accord with the general course of authority and principle is, that as between lessor and lessee, with the privilege to the latter to purchase, the conversion will be deemed to have taken place at the time of declaring the option, and not from the date of the contract giving the option. Such was the holding in Edwards v. West, L. R., 7 Ch., Div. 858, where under the terms of a lease the landlord covenanted to insure, and the tenant had the option to purchase for a fixed sum. Before the time for exercising the option the buildings demised were burned, and the landlord received the insurance money. The tenant then exercised his option to purchase, and claimed the insurance money as part of his purchase, on the ground that the option to purchase, when exercised, related back to the time of the contract giving the option, since which, it was argued, the property had been partially converted into personalty by the fire and the receipt of the insurance money, and that the purchaser was entitled to it in that shape. It was held, that conversion, according to general principles, cannot relate back to an earlier date than that of the contract constituted by the exercise of the option; that as between the vendor and the purchaser themselves, the conversion did not and could not take place until the purchaser declared his option.

Until the option to purchase was exercised by the defendants in error, Eoewensteins, by the payment of the purchase money, there was only an incomplete contract; it was executory in its nature; there was no agreement capable of being specifically enforced by the lessor, nor could the lessee, without declaring the option and making the required payment, compel a conveyance of the premises in fee-simple. For aught that appeared, the privilege of purchase acquired by the lease might never be exercised.

After the death of the lessor, the demised premises descended to Edward W. Townsend, the son and heir-at-law, and became vested in him as an estate of inheritance. Clothed with the legal estate and the freehold title, he was entitled to receive the rents and profits, and had the right to enter for condition broken, and all other rights of the owner in fee, subject to those of the tenant.

It was subsequent to the death of the lessor, and after the estate had thus vested in the heir, that the Eoewensteins exercised the option of purchase, and called for a conveyanee of the premises. In our judgment, it was at that time that there was a conversion of the real estate into personalty, and we see no good reason why the doctrine of relation back to the date of the lease should be applied, for the purpose of divesting the heirs who held the freehold title when the option was declared, and handing over the purchase money to the personal representatives. The descent to the heir was in the legal channel which the statute had marked out; and after executing the lease, the lessor did nothing to curtail the rights of the heir, upon whom the law would cast the real estate 'immediately upon the death of the ancestor. The estate having thus devolved, and the lessee having failed or neglected to exercise the option to purchase while the lessor was alive, we do not discover upon what satisfactory ground, the real estate should be deemed converted into personalty as of the date of the lease, for the purpose of diverting the purchase money from the heir to the administrator.

The case of Lawes v. Bennett, 1 Cox., 167, is cited by counsel as establishing the doctrine, that conversion may be made to depend upon the option to purchase at a future time, which when exercised after the death of the owner of the estate, will, at any rate as between his real and personal representatives, have a retrospective operation, to the time when the agreement giving the option was entered into. There is no adjudication of this court, in which the doctrine of equitable conversion as applied to optional contracts, with a retrospective operation, is accepted. In Gilbert v. Port, 28 Ohio St., 276, 296, the court recognized the rule, that equity looks upon things agreed to be done as actually done, and when a contract is made for the sale of an estate, considers the vendor as a trustee for the purchaser of the estate sold, and the purchaser as a trustee of the purchase money for the vendor. But the court did not hold, either with or without qualification, that the rule applied “to optional contracts, as well as to -those absolute.” An examination of authorities, English and American, makes manifest that the doctrine of Lawes v. Bennett, does not rest upon a firm foundation.

In Townley v. Bedwell, 14 Ves., 591, Lord Chancellor Erdon says: “ That case, Lawes v. Bennett, was very much argued; and I do not mean to say, that a great deal may not be urged against it.” It was not overruled, however, but was evidently followed as a precedent of impaired authority.

In Collingwood v. Row, 3 Jur. N. S. 785, a lessee of real estate, with an option to purchase at the expiration of a term of years, made the purchase after the death of the lessor. The Vice-Chancellor said: “The only question, then, is, whether this is to be taken as realty or personalty; and I confess I should have felt very great doubts if it were res integra, as very great inconveniences might follow; for after the enjoyment for many years by the devisor, on the expression of an option the realty may be converted into personalty, and not only converted, but the whole may be taken away and given to another. It is a very singular and inconvenient state of things; but if the question has been decided by so great a man as Rord Kenyon,” in Lawes v. Bennett, “whatever doubts I might entertain as to that decision, I am bound to follow it.”

In Edwards v. West, supra, Fry, J., in speaking of the same decision, said: “Whether it is or is not consistent with the general principle upon which conversion has been held to exist, it is not for me to say. It is enough for me to sa}’' that the case has been followed in numerous other cases, though it has been observed upon by more than one judge as somewhat difficult of explanation. * * I do not think I am at liberty to extend it, so as to imply that there is conversion from the date of the contract giving the option, as between the vendor and the purchaser who claim under it.”

In Lawes v. Bennett, there was a lease for seven 3’ears from October, 1758, with a privilege of purchase at any time after September, 1761, and before Septemper, 1765; in Townley v. Bedwell, the lease had been executed in 1795, for thirty-three years, with the privilege of purchase within six years; in Collingwood v. Row, there was a lease of the premises for the term of fourteen years, with the choice of purchasing at the end of the term; in Edwards v. West, there was a demise of the premises for twent3>--one years, with the option to purchase before the expiration of five years. In these and similar cases, where the conversion awaits an expression of the option, there exists the difficulty, that it is left to the election of the lessee whether the demised premises shall be real or personal property. There is, however, the probability, that a tenant who has made improvements on the premises, may, in view of avoiding loss, take advantage of an option to purchase within the prescribed term of a few years, and thus settle the character of the property while the lessor is alive.

But, in the case at bar, there is a perpetual lease with a perpetual right to purchase. According to the contention of the plaintiff in error, the option may be declared at any time in the future, and the fund be paid to the administrator. In Graves v. Graves, 15 Ir., Ch. 357, the Master of the Rolls, referring to Lawes v. Bennett, and Townley v. Bedwell, says: “ In one of those cases the option was to be exercised within six years, and in the other within seven years, which is very different from an option to be exercised at the end of any number of centuries.” If after the death of the lessor, and the lapse of over thirty-five years, under the perpetual lease in controversy, the option of purchase may be declared, and the fund paid to the administrator instead of the heir, for the same reason it may be done at the end of a hundred or more years, when, in the natural, course of things, it would be impossible to find a personal representative of the lessor, or to ascertain who might be the distributees. Nor can we think that the lessor—Mrs. Townsend —having executed the lease for ninety-nine years, renewable forever, intended, that after her son had inherited the land and enjoyed the rents for a series of years, the lessee, upon exercising his option of purchase, might retrospectively convert the real estate into personalty, so that the purchase-money would go to her personal representatives instead of her son and heir.

To what extent a conversion takes place, and to whom the proceeds should go, when land is converted into money, must be determined by looking to the contract or instrument as indicating the intention of parties. Thus, where a will contains a specific devise by name of property, subject to the option, it has been held to carry to the devisee the purchase money also when the option is exercised. Drant v. Vause, 1 Y. & C., 580; Emuss v. Smith, 2 De. G. & Sm., 722. So also, when, in the instrument by which the option is given, there is a direction that the purchase-money is to be paid to the person who is the owner of the estate when the option is exercised, he alone will be entitled to it. Graves v. Graves, supra, 369, 370.

The contract of lease, in the case before us, provided expressly for the payment of the purchase money and all accrued rents to the party of the first part, “her heirs or assigns;” and it is covenanted, that “her heirs or assigns” shall and will convey and assure the inheritance or fee-simple of the demised premises. These provisions in the lease might ordinarily be deemed “too slight to act upon,” as said by the Vice-Chancellor in Weeding v. Weeding, 1 Johns. & H. 432; but, when we consider the duration of the lease, running “for, during and to the full end and term of ninety-nine years, fully to be completed and ended, and renewable forever,” and the further fact, that by operation of law, which the lessor is presumed to have known, the rents and profits would go to her son until the option to purchase should be exercised, we 'are not prepared to say that the lessor did not have in mind the benefit to be derived by her sou, if he survived her, and the option to purchase should not be exercised in her lifetime.

Upon payment of the purchase money and accrued rents by the lessee, as no claim is made upon the fund to satisfy debts of the lessor, there would be no need of the circuitous process of pajdng the money and rents to the personal representative of the lessor, that he might, in turn, pay over the same to the heirs. The parties all being before the court, it was right, therefore, that the fund should be ordered paid directly to the heirs-at-law of Edward W. Townsend.

Judgment affirmed.


author: Bradbury, C. J.

text:
    City of Toledo v. Preston.

      Constitutional law—Municipal corporations—Probate courts—Jurisdiction of—Bill of exceptions—Nunc pro tunc order.

    1. Section 2316, Revised Statutes, authorizing municipal corporations to postpone, until after a proposed public improvement shall have been completed, a judicial inqfiiry into claims for damages filed on account thereof, by owners of abutting property, is not in conflict with section 16 of article I of the constitution of 1851.
    2. The jurisdiction conferred upon probate courts by sections 2317 to 2321 inclusive, Revised Statutes,'to inquire into and determine the damages sustained by owners of abutting property on account of such improvements, is warranted by section 8 of article IV of the constitution of 1851'; and the proceedings had in the probate court may be pleaded in bar of an action subsequently brought in a court of common pleas upon the same claim.
    3. A probate court has no power, under the form of a procedure, to obtain an order nunc pro tunc, to inquire into, ascertain and declare of record, the reasons that induced a jury to arrive at the verdict it had rendered in a cause, theretofore tried in that court.
    4. The only lawful method of bringing into the record the propositions of law given to the jury on the trial of a cause is by a bill of exceptiors taken and perfected within the time and in the manner provided by statute. And where at the trial no exception was noted to the charge of the court, and no bill of exceptions attempted to be taken to make that charge a part of the record, the court has no jurisdiction after the cause has ended, to ascertain and declare what those propositions were, and a nunc pro tunc order to that effect is absolutely void.
    (Decided May 9, 1893.)
    Error to the Circuit Court of Rucas county.
    In the year 1854, the city of Toledo established a grade for Erie street of said city at its intersection with Jefferson street. The defendant in error was, at that time, or after-wards became, the owner of certain real estate located on one of the corners formed by the intersection of said streets, and improved the same with reference to said grade. After-wards, in the year 1880, the city changed the grade of Erie street in front of the lot of the defendant in error, by raising it about four and one-half feet above the grade established in 1854, and proceeded to improve the street with reference to such new grade. The plantiff was notified of the adoption of the resolution providing for the improvement, and filed with the city clerk a claim for the damages, claimed by him on account thereof. Afterwards the city, in the ordinance providing for the improvement and the method for-paying the cost thereof, also provided that the claims for damages arising from said improvement should be inquired into after the completion of the proposed improvement. On October 18, 1881, after the improvement had been completed, the city, through its solicitor, instituted proceedings in the probate court of Rucas count}^ to ascertain the damages that had accrued to the owners of property adjoining said improvement, making the defendant in error, among others, defendant thereto. A trial was had before the probate judge and a jury, which resulted in the jury returning a verdict of “no damages” in respect to the claim of the defendant in error. The defendant in error took no exceptions either to the rulings of the judge or to the finding of the jury; nor did he institute any proceedings whatever to set aside the verdict or reverse any ruling of the probate court that lead up thereto.
    In 1886, over four years thereafter, however, he began a suit in the court of common pleas of Lucas county to recover from the city the damages he claimed to have sustained on account of the improvement. To this action the city answered, setting up in bar thereof the proceedings had, upon the inquest of damages, in the probate court. .
    To this answer the defendant in error replied as follows:
    “The plaintiff for reply to the matters set forth in the said answer of said defendants, admits: That in a certain so-called proceeding in the probate court begun in November, 1881, by the city of Toledo, the said plaintiff was summoned into said court under the order and direction of .the city of Toledo, for the purpose of summoning a jury to assess the damages sustained by said plaintiff, by reason of the change of grade and the filling of Erie street in front of said plaintiff’s said premises.
    “That at the time of said proceedings the said property of said plaintiff, had been injured and damaged to the amount claimed in his said petition, and said plaintiff made it appear, then and there, in said probate court, upon the hearing before the jury to assess the said damage, which amount of his said damage and injury was undisputed by said city of Toledo.
    “That the sole ground upon which said city sought to defeat an award to said plaintiff, was upon the ground that his said claim for damages had not been filed within time.
    “Said plaintiff says that the jury was instructed by said court, and the jury found, or attempted to find in said action, that the said plaintiff’s claim had not been filed within the time provided by law, and for that reason and none other, the said jury returned in said proceedings, no award in favor of said plaintiff.
    “Attached hereto and marked Exhibit “O,” and made a part hereof is that part of the record and finding in said cause made May 19, 1887, as relates to the said matter.
    “ That in fact and in law the said plaintiff’s claim had been filed within the time provided by law, and in fact said plaintiff had suffered and sustained damages to the extent and amount claimed in his said petition, but that under the instructions of the probate court, the jury in said proceedings, in said probate court, made no award in favor of said plaintiff for the sole and only reason as aforesaid that said plaintiff’s claim had not been filed within the time.
    “Said plaintiff says that he was served with a notice which is hereto attached marked Exhibit “A,” and made a part hereof, upon the 9th day of June, 1880, and thereafter upon the 25th day of June, 1880, filed said written claim for damages (Exhibit “A”), with the clerk of the city council of the city of Toledo.
    “ Said plaintiff says that said proceedings in said probate court, to assess said compensation and damages to said plaintiff, were made after said improvement had been made and after said plaintiff had suffered and sustained the injury and damages that he claims herein.
    “That at the time of said appropriation or improvement the said city had failed and omitted to make compensation to him in any manner whatever before making said improvement or since.
    “Said plaintiff says that said proceedings by said city of Toledo in said probate court were unconstitutional and void, and the “action of said probate court therein is in no way binding upon said plaintiff herein and was not in due course of law.
    “That the provisions of the statute under which said proceedings were instituted, were in violation of the provisions of the constitution of the state of Ohio, article I, sections 16-19, and article XIII, section 5.
    “The said plaintiff denies the validity of said proceedings or said judgment in said probate court, or that the same has a'ny force or effect whatever as against said plaintiff herein.
    “Denies that said court and jury found that the property of said Preston had sustained no damage by reason of the said improvement of Erie street, set forth in said defendant’s answer.”
    The following is Exhibit “O,” referred to in the reply and made a part thereof:
    “Probate Court, May 19, 1887.
    ‘‘ The City of Toledo v. James W. Meyers et al.—Erie street damages, from Madison to Monroe.
    “This day came the plaintiff by its attorney, G. W. Kinney, and one of said defendants, F. W. Preston, by his attorney, E. D. Potter, Jr., on application of said defendant, and showing that the record in said cause was and is incomplete, and the court being advised in the premises, does find that the said probate court on the trial of said cause against said Preston charged the jury that if they found that the notice to file his claim for damages was served upon him on the 9th day of June, 1880,-and he filed his said claim for damages upon the 25th day of June, 1880, then they should return no award in his favor, for the reason, that he had not filed his claim within the time provided by law. That thereupon said jury retired and returned no award in his favor, and for the only reason that said claim had not been filed in time. And the court now orders that this finding be made a part of the record in said cause. And thereupon the said plaintiff, by its said 'attorney named herein, excepts to the order made herein.”
    A demurrer to this reply was interposed by the city and overruled by the court of common pleas, to which ruling the city excepted. Thereupon a jury being waived, the cause was tried to the court and a finding made in favor of the defendant in error, upon which he recovered judgment. The circuit court having affirmed this judgment, the proceedings are brought here for review.

      W. H A. Reed, for plaintiff in error.

      E. D. Potter, for defendant in error.
   Bradbury, C. J.

The only question for this court to consider is whether the proceedings had in the probate court upon an inquest of damages is a bar to the action of the plaintiff below, brought to recover upon the identical claim passed upon by the jury in the probate court.

The jurisdiction of the probate court to inquire by jury into a claim for damages, like that of the defendant in error, caused to abutting property by a street improvement, is clearly established by sections 2315 to 2327, inclusive, of the Revised Statutes, if there is no constitutional objection to such jurisdiction being exercised by that court. Section 2319 going to the extent of making the verdict of the jury final, and prohibiting an appeal therefrom, leaving to the aggrieved party such remedy, only, as may be provided by the statutes regulating proceedings in error. Section 8, of article IV, of the constitution of 1851, relating to probate courts and their jurisdiction, provides that “the probate court shall have jurisdiction in probate and testamentary matters * * * and such other jurisdiction as may be provided by law.” Under the provisions of this section of the constitution the general assembly were fully warranted in conferring upon the probate court the jurisdiction under consideration.

Counsel for defendant in error further contended that section 2316, Revised Statutes, that authorizes councils of municipalities to postpone the inquest of damages until after the improvements should be completed, violates section 19, of article I, and section 5, of-article XIII, of the constitution of 1851, designed to protect private property from unjust seizure and appropriation to the use of the public, and also conflicts with section 16, article I, of that instrument, which secures a speedy remedy by due process of law to one who may be injured in his person, reputation or property.

Section 5, of article XIII, does not apply to cases of property taken to construct roads which shall be open to-the public without charge, in which class the streets of our towns and cities belong. The rights of the owners of property taken and applied to such use falls within the protection guaranteed by section 19, of article I, by the provisions of which compensation is not required to be made before the property is taken.

The jurisdiction conferred on probate courts, and the course of proceedure prescribed by statute for ascertaining the damages resulting to abutting property on account of improving a street, do not conflict with section 16, of article I, of the constitution, which provides that “all courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law, and justice administered without denial or delay,” for the probate court is a tribunal provided by the constitution itself, and the statute authorizing the proceedings before it, gives “a remedy by due course of law” in prescribing that notice shall be given to all parties to be affected by the inquiry, and that the trial shall be by jury.

The constitutionality of the provision of the statute authorizing the inquiry to be postponed until after the improvement should be completed may be a question not so readily and satisfactorily solved; for certainly it might be claimed with great show of reason that, when an injury has been fully accomplished, section 16, of article I, denies to the general assembly the power to postpone, directly or indirectly to a future period, the right of the injured party to seek redress in the tribunals established to administer justice.

The statute under consideration, however, only contemplates a delay until the injury shall be fully accomplished; for, until the improvement has been completed, it is, perhaps, always impracticable to ascertain with certainty the extent of the injury, the fill or excavation, as the case may be, will cause; in fact the injury has not been completed until then; and a delay of the proceedings until that time, we do not think, necessarily conflicts with that provision of the constitution, before -quoted, which provides that the administration of justice shall neither be denied- nor delayed. No doubt a municipality should be required .to proceed in good faith and with reasonable diligence with the work of improvement.

We are of the opinion, therefore, that the statute -which confers the jurisdiction under consideration, upon the probate courts of the state, is not in conflict with any of the provisions of our present constitution.

The defendant in error contends further, that if the jurisdiction exists, the probate court and jury are limited to the question of the amount of damages, and if any other ground to defeat a recovery existed, than that the improvement caused no injury, and - it was not available in the inquiry before that tribunal. This we think is too narrow a construction of the statute (sections 2317 to 2321, Revised •Statutes), that confers the jurisdiction. The municipality, in availing itself of the remedy thus provided, should not be held to have confessed its liability in every particular except one, and limited itself to contesting, the claim on • the sole ground that the property was not injured at all, or if injured, that the damages were less than the sum claimed. The object of the statute was to provide a more summary and less expensive proceeding to ascertain the liability of the municipality arising from the improvement than was afforded by the usual method of procedure. The statute authorizes the inquiry to be had before either the common pleas or the probate court; but whichever tribunal may be selected the jurisdiction should be held broad enough to determine the full measure of the liability of the municipality, or exonerate it altogether if no legal obligation exists against it, at the time of the inquiry.

However, if the contention of the defendant in error in this particular was right, it would not aid him in the case under consideration, for the verdict of the jury in the inquiry before the probate court was that the defendant in error had sustained no damages. The record of this inquiry is not set forth in haec verba, but the answer of the city, setting up the proceedings in the probate court, in bar of the action brought by defendant in error in the court of common pleas, shows that the defendant in error was served with process and appeared in the probate court, that the cause was tried to a jury, who rendered a verdict of “no damages ” against the defendant in error, and that the claim involved in that proceeding is the same that he afterwards sued on in the court of common pleas. The record of the proceedings in the probate court seems to have correctly recited every step taken therein, omitting nothing that should have been recorded. Nearly six years after the cause was tried and the verdict rendered, application was made to the' probate court by the defeated party to correct the record by supplying an alleged omission. This application was successful, and Exhibit “O,” which attempts to show the instructions given by the probate court upon the inquest of damages, and the reasons that controlled the jury in returning its verdict, was added to the record. We know of no practice by which a court can ascertain and declare of record the reasons which induced a jury to arrive at a particular-conclusion, orjby which the jury itself is permitted to assign and place upon record the reasons that produced its verdict. If the court committed an error in some material part of its. instructions, it will be presumed that the verdict may have-resulted therefrom; but the only legal and proper method of bringing upon the record the instructions given to a jury by the trial court is by a bill of exceptions taken at the time and in the manner prescribed by statute. In the inquest of damages had in the probate court no bill of exceptions was taken, and therefore the charge of the court was not preserved in that, the only manner, known to the law for its preservation. For aught that appears another judge, than he who instructed the jury, was called upon to ascertain, how is not shown, but probably by the introduction of evidence pro and con, what legal propositions had been submitted to a jury by his predecessor, upon the trial of a cause six years before. Judicial determinations could have but little stability or value in causes or tribunals where this is permissible. No doubt that in a proper case and upon satisfactory proof a nunc pro tunc entry may be had, many years after a record has been made up, correcting the entry so that it shall conform to the actual order or judgment of the court; but the order or judgment must have been in fact made, and in no case should that be added to the record which is not properly a part thereof.

If the probate court had jurisdiction in the matter of ascertaining the damages that accrued to the owners of propert3' abutting on the improvement, it is now too late to review its action, however erroneous it may have been. That could only be done by a proceeding instituted for that purpose directly upon the record itself. If the jurisdiction existed, the verdict is equally binding whether it was for a large sum, a small sum, or no sum at all. If no damages had been sustained the jury were bound by their oaths to return a verdict according^. If, in obedience to an erroneous charge of the court, the jury returned a verdict for too large or too small an amount, or for “no damages,” as ■ in the case under consideration, it is nevertheless their verdict and binding on the parties until set aside, either by the probate court or some one of the superior courts vested with power to review its proceedings; and this would be so even if the claim of the defendant in error for damages caused by the improvement should be regarded as in the nature of a claim for property taken and appropriated to a public use. It follows from these conclusions that the demurrer to the reply ought to have been sustained.

Jtidgment reversed.


author: By The Court.

text:
    Niles v. Shaw, Treasurer.

      Taxation—What are credits—What investments—National Bank shares.

    Our tax laws do not authorize the deduction from the value of shares in a national hank, entered on the duplicate for taxation, of legal bona fide debts owing by the holder of such shares of stock.
    (Decided May 9, 1893.)
    Error to the Circuit Court of Hancock county.
    The plaintiffs action was commenced by the filing of a petition in the court of common pleas, as follows:
    “Charles E. Niles, plaintiff above named, says that Oliver P. Shaw, defendant above named, is the county treasurer of said Plancock county, duly elected and qualified and acting as such, and as such treasurer charged with the collection of the taxes upon the grand duplicate of said county.
    “Plaintiff, complaining of said defendant; says that on and before the month of May, A. D. 1890, he was since then, has been, and now is the owner and holder of 275 shares of the capital stock of the First National Bank of Findlay, a banking corporation duly organized under the laws of the United States.
    “That in said month of May, 1890, the cashier of said bank duly made out and returned to the auditor of said county, the reports required by section 2765, of the Revised Statutes.
    “That afterwards such action was had under the provisions of section 2766, of the Revised Statutes, that the valúation of said 275 shares so owned by plain tiff, was fixed at the sum of $26,129.00, and were placed by said auditor upon the tax duplicate of said county for said year 1890, at said valuation for taxation against plaintiff and without notice to him.
    “That at said time plaintiff’s collectible credits amounted to $850.00 and no more, while his bona fide liabilities amounted to $24,000.00, of which sum plaintiff of right, and by the laws of Ohio, was and is entitled to have $23,150.00 deducted from said valuation of said shares, leaving the true amount to be placed upon said duplicate for taxation against this plaintiff at $3,000.00.
    “Yet, notwithstanding the premises, the said auditor wrongfully and unlawfully placed upon said duplicate as aforesaid, for taxation against plaintiff, the said full valuation of $26,129.00.
    “Plaintiff says that the rate of taxation in said city for said year was and is 18.35 mills.
    “That in December, 1890, said defendant treasurer required said bank to pay, and said bank did pay, and said treasurer collected from said bank the taxes upon the shares of the several shareholders and among others the sum of $479.47. being the amount of the December installment of taxes for said year 1890, upon the valuation of plaintiff’s said shares.
    “That the June installment of the said taxes of 1890 is now due and payable, yet the amount of said installment placed upon said duplicate as the tax upon plaintiff's said shares is $453.43, being the tax assessed upon $26,129.00, at the rate of 18.35 mills, while the true amount which plaintiff justly and of right should pay is $52.05, being the full and true amount of tax justly chargeable to plaintiff, and being the tax on said sum of $3,000, the amount properly taxable after deducting said liabilities from said gross valuation of said shares.
    “On the 25th day of July, 1891, this plaintiff presented to said auditor his written statement and demand, duly verified, embodying the facts herein above set forth, claiming that his said liabilities be deducted from said valuation and requesting that said auditor, in compliance with the mandatory provision of section 1038, of the Revised Statutes of Ohio, correct said tax duplicate, and give to plaintiff, to be pre- . sented to said treasurer, a certificate of said erroneous taxes for the sum of $401.29, the amount so erroneously assessed. But the said auditor, notwithstanding the premises, refused to make said correction or give to plaintiff said certificate.
    “Thereupon, and on said day, plaintiff duly tendered to said treasurer the sum of $52.05, in payment of the June installment of the taxes of 1890, so being the true amount justly chargeable as aforesaid, which sum this plaintiff is fully able, ready and willing to pay, and here and now tender the same and brings it into court; yet the said treasurer refused to receive or accept said sum and payment, and threatens to and is about to use his statutory power and by distraint or otherwise enforce the payment of the whole amount of said installment, to-wit, $453.34.
    “Plaintiff thereupon prays that defendant be temporarily restrained from enforcing the collection of said erroneous sum of $401.29, and that upon the final hearing of this cause upon its merits, said injunction be made perpetual, and for ■such other and further relief, etc.”
    In the common pleas a general demurrer to the petition was sustained, and the petition dismissed. On appeal by plaintiff to the circuit court a like judgment was there rendered.

      A. Blackford and f. A. & E. V. Bope, attorneys for plaintiff in error.

      Burket & Burket and John Poe, attorneys for defendant in error.
   By The Court.

We think, the demurrer was properly sustained. Irrespective of the question whether or not in arriving at the correct amount of property subject to taxation, legal, bona fide debts owing by a debtor can be deducted from credits owing to him (considered in Bank v. Hines, 3 Ohio St. 1, and in Latimer v. Morgan, 6 Ohio St 279), we are of opinion that shares of stock in a national bank are, within the meaning of sections, 2730 and 2731, Revised Statutes, “investments in stocks,” and not “credits,” and that, in determining the amount to be charged on the duplicate for taxation against a stockholder in a national bank, bona fide debts owing by such stockholder cannot be deducted from the value of his shares.

' Judgment affirmed.

Burket, J., not sitting.