Bigelow v. Barr

4 Ohio 327 | Ohio | 1829

Opinion of the court, by

Judge Brush:

The object of the bill is to establish the right of the wife, Maria Bigelow, to the use and possession of a farm of one hundred and sixty acres of land, lying in Hamilton county, by virtue of the will of William Barr, Sen., deceased, for and during her natural life; and to enjoin further proceeding at law upon a judgment in forcible detainer obtained against the tenants of complainants. The clause in the will relied upon reads thus: “ And in case my said son, John M. Barr, should die, leaving a legitimate child or children, then also in trust for Maria Barr, wife of the said John M. Barr, in case she survive him, during her natural life, for the purpose of maintaining herself and the child or children, and educating the said children ; but nevertheless to permit and suffer the said Maria Barr, wife of the said John M. Barr, to hold, use, occupy, and enjoy the said farm, and to receive and take the rents and profits thereof during her natural life.” The said John M. Barr, former husband of complainant, Maria, died August, 1820, leaving said Maria and a daughter, the legitimate issue of both ; and thereupon, the estate, thus limited and declared in her favor, became and was absolutely vested in her, for and during her natural life. But it is said this estate, thus expressly devised to complainant Maria for life, was nevertheless subject to be defeated by the death of the child; as thereby the object and purpose of the devise fails oris accomplished. And as the child died in *Hovembor, 1821, about one year and three months after her father, the estate thereupon was defeated, and, by another clause in the will, passed to the defendants, J. Keys, J. B. Ennes, and W. Barr, as executors and residuary legatees. And this is argued by de - fendants’ counsel, not on the ground that the testator has expressed any such intention or wish in the will, but for the reason above suggested, that the purpose of the devise in favor of complainant Maria was accomplished when the child died ; in other words, that the purpose and object of the devise was the maintenance and education of said child. Although this is expressed to be one purpose, yet it is believed that the primary object and chief purpose was the maintenance and support of the mother, during her life, thereby to enable her to do her duty to her child or children. This was expected of her, and that of course she would X’aise and educate such and so many as her late husband left with her. It is true, according to the authorities cited by defendants’ counsel, and upon principle, that “ property given by will for certain purposes, results when those purposes are accomplished; or that nothing mox’e is subject than those purposes require.” But the application of the rule in this case is not so readily perceived. The testator has been explicit, and has directed, in the very next clause, that the remainder in fee, upon the decease of said Maria, shall go to said child or children and their heirs. Indeed, taking the two clauses together, he has so said expressly, and thus has left his intention unembai’rassed, and not perplexed with any doubts whatever in relation to this matter. But thei’e is another defense. Defendants sets up an agreement made, as he says, on the death of said child, between him, Ennes, and Keys, the other executors named in the will, of the one part, and complainant (of the other part meaning), in substance, that the annuity mentioned in the will of two hundred dollars, should be paid her while unmarried, and the one thousand dollars in lieu on her marriage, as a satisfaction of all claim on her part under the will. It is not said that the above agreement was in writing, nor is it stated to be a purchase by them or a sale by her of her life estate in said farm. But we understand defendant that it was an agreement to give her precisely what she was entitled to under the will according to the construction, he *and they and she gave to the will at the time. They made a verbal agreement to give her what was her own, by the construction they put upon the will. Defendant says he did not advise her, as to the construction of the will, but left her to act for herself, and by the advice of her other friends. Her brother advised her. Defendant states unsubstantial and unsatisfactory apologies and excuses for not performing this agreement on their part. They were men dealing with a weeping widow, who, a little more than a year before, had lost her husband, and just then her only child ! But the agreement is denied by her, and is not proved. And unsuitable as the time was, yet, in this respect, if it were otherwise, and the agreement stated was proved, it would be no defense against the right now claimed; because the right was not considered as existing and was not therefore the subject matter of the agreement.

The afflicted widow did not know, or imgaine she was parting with an estate for her life, producing an income, if properly managed, of two or three hundred dollars a year, and likely to increase in value. It was not the understanding of the parties, as we learn from defendants’ answer; but their understanding was, that she was entitled only to the annuity and the composition thereof, on her marriage. It was that they were making some efforts to secure and pay to her, but have failed almost, if not altogether to do that, even according to his own showing. If the life estate had been distinctly the subject matter of the agreement, it could not be set up in this instance, without overstepping the statute of frauds. Such part performance is the foot and ground of the agreement (supposing it to have been for the life estate) as would take it out of the operation of the statute, is not stated and evidenced by proof. And besides now, after so long delay, and the rise of property, it would be unreasonable to enforce any such agreement. The evidence is not favorable to this defense; so far from showing that Mrs. Bigelow considered or understood she was parting with the estate in controversy, it strongly countenances the contrary belief. Her conversations given in evidence, were about her rights under the will, not about any agreement she had made to part with any of them. So far as the depositions

^relate conversations of the husband, John Bigelow, they are idle, as having no bearing upon the defense set up in the answer. They, however, prove nothing of importance in this case; and if they did, would be obnoxious to the objection, that they prove, if anything, a verbal conversation concerning the salo of real estate.

Decree for complainants.