260 F. 423 | S.D. Ohio | 1916
The primary question for decision is, What estate has Andrew S. Youtsey, the bankrupt, in the 158 acres of land hereinafter mentioned?
On February 25 and June 21, 1915, certain creditors filed a petition and a supplemental petition, respectively, averring that the bankrupt is seized in fee simple of the land in question, and that the trustee in bankruptcy asserts that there is a cloud upon its title which prevents him from conveying it in fee to a purchaser. A construction of the will of Plarrison Youtsey is requested in each of such pleadings. On June 23d the trustee in bankruptcy by intervention pleaded that the bankrupt’s only property is the 158-acre farm located in Dost Creek township, Miami county, which farm was devised to the bankrupt by his father, Harrison Youtsey, who died testate in 1882, his will being duly probated in the early portion of that year. The testator left a widow and five children, to wit, William H., John C., Clara, Ella, and Andrew, the bankrupt. Andrew, at the time of his father’s death, was a minor, unmarried, and without children, but subsequently married, from which marriage there were born to him the following children: Sarah K. (deceased without children), Flattie, George R., and Earl, all of whom are now of age, Earl having attained his majority subsequent to the institution of these proceedings. A controversy has long existed as to the extent of the bankrupt’s estate in the premises in question. Averments are made by the trustee as to a partition proceeding instituted in the state court by the bankrupt against his children other than Sarah K. Youtsey, and of various deeds which were executed and delivered to the bankrupt to lodge in him the title to such property, which partition proceeding and conveyances will be hereinafter noted. The trustee’s prayer is for a determination of the estate held by Andrew in the lands in question. On June 25th Earl D. Youtsey, then of full age, admitting that he is one of the bankrupt’s children, and also the will and death of his grandfather, Harrison Youtsey, and .the unsecured character of the petitioners’ claims, by answer denied all else, and asks for a construction of such will.
In his will, duly executed February 5, 1882, Harrison Youtsey gave and devised to his son William FI. a farm of 161 acres; to his daughter Ella a farm of 100 acres; to his son John C. 160 acres; to his daughter Clara 146 acres; and to his son Andrew the west portion of the home farm, to be possessed by him when he should arrive at the
“All of the foregoing devises to the several devisees as named are to be to them for their natural lives, and on their decease are to go to the heirs of their bodies, and if any die leaving no heirs of their bodies then their devise to revert hack (subject to right of curtesy or dower as the case may be) as hereafter provided, and to be divided equally between those living or their heirs per stirpes.
“It is my will that the provisions I have herein made in relation to the several tracts of land by me devised to my several children shall not be so construed as to exclude the husbands of my deceased daughters from holding curtesy in said tracts of land so devised by me to my daughters, or the wives of my deceased sons from holding dower in the tracts of land devised by me to them, and after their decease then to be governed by the provisions in this will made. I mean by this that although the fee to the several tracts of land by me devised to my several children does not vest in them, but in the heirs of their bodies, that the wives and the husbands of said children herein named now married, or that may hereafter marry, shall have the same interest of dower or curtesy as though the fee had vested in my said sons and daughters, except, if any die without heirs of their bodies, then to revert as above provided by me in this my will.”
He then gave to his wife the use and occupation of the home farm until Andrew should arrive at his majority, at which time she was directed to surrender to him the west portion of the home farm. She was to retain the occupancy, use, and control of the east portion of it during her natural life. All household goods were given to her absolutely and subject to her disposal. The will then proceeds:
“At the death of my said wife my son Andrew S. Youtsey (if he be twenty-one years of age), and, if not, when he shall be twenty-one years of age, shall have that part of the home farm as above devised to my said wife during her natural life, and I hereby devise the same to him during his natural life, and then to be subject to the same provisions as are hereinbefore made as to all the other devisees.”
Provisions were made for executors and the settlement of the estate, which has been fully administered. Harrison Youtsey’s widow died July 2, 1907.
“Estates tail then are estates of inheritance, which, instead of descent to heirs generally, go to the heirs of the donee’s body, which mean his lawful issue, his children, and through them to his grandchildren in a direct line, so long as his posterity endures in a regular order and course of descent, and, upon the extinction of such issue, the estate determines.”
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The creation of .a life estate in the testator's children is inconsistent . with an entailment. When a life estate is created, the fee is vested in the remainderman and not in the life tenant. When an estate tail ■ is created, the fee is vested by the grant or devise in the first taker, the first donee in tail, and a fee simple is taken at his death by operation of law (section 8622) by the immediate heirs of his body. Section , 10578, G. C. Ohio, first enacted in 1840, abolishes the rule in Shelley’s
“Tlie right by means of which the real owner of the foe will eventually come into possession of this property as an estate of inheritance is vested in some person or persons awaiting the event which will unite the right of property and the right of possession in the same person or persons. We do not believe it is in abeyance or that it rests in nubibus. It is clear that it is not in Euretta — her only title is to an estate for her natural life; nor in her children — she has none. * * * The fee-simple title was in the testator until his death, and, if it did not pass by his will to any devisee therein named, it either ceased to exist in any one, or it passed by way of descent to his heirs at law. In our opinion it descended to the heirs, subject, however, to be divested, by force of the will, in the event that Euretta shall die leaving children; but subsisting in the meantime in the heirs, for the purpose of drawing the possession to them in the event of her death without children.”
The will did not use the words “heirs of her body,” but the words “to her children”; but, as the words “heirs of their bodies” employed in the Harrison Youtsey will mean none other than “children” of the devisees who took a life estate, the rule in the Gilpin Case is directly in point. The fee in the premises here in question vested at the death of the testator in his heirs, subject, however, to be divested when a
By the terms of the will considered in Craig v. Rowland, 10 App. D. C. 402, there was devised to a mother and her unmarried childless son certain real estate, with the provision that, if the son thereafter married and died leaving lawful issue, or lawful descendants of such children, such issue or descendants, if in being at the time of the death of both mother and son, should take such real estate in fee simple; but if the son should die without having married, and without lawful issue surviving him, the premises should go to the testator’s right heirs. Following the death of the testator the son married and had children. The situation was such as to make the rule announced in that case applicable here.- It was held that the remainder, limited to the children or descendants of the son, became a vested remainder in fee simple in the first child born to the son or that came into being and capable to take, and did not wait for the death of the father; and this remainder thus vested was subject to open and let in the after-born children. Neither in that case nor in Carver v. Jackson, 4 Pet. 1, 90, 91, 92, 7 R. Ed. 761, did the court have any difficulty about the title being held in abeyance. 1
In Doe v. Considine, 6 Wall. 458, at page 477 (18 L. Ed. 869), a case which arose in and involved land in this judicial district, and has therefore all the force of an Ohio authority, Mr. Justice Swayne quoted Chancellor Kent with approval to the point that—
“A. devises to B. for life, remainder to his children, but, if he dies without leaving children remainder over, both the remainders are contingent; but if B. afterward marries and has a child, the remainder becomes vested in that child, subject to open and let in unborn children, and the remainders over are gone forever. The remainder becomes a vested remainder in fee in the child as soon as the child is born, and does not wait for the parent’s death, and, if the child dies in the lifetime of the parent, the vested estate in remainder descends to his heirs.”
He quoted, as I do, the above language on account of its appositeness to the case under consideration. He cited Jeffers v. Lampson, 10 Ohio St. 101, as in harmony with the above-quoted passage.
Having learned that the Harrison Youtsey will had been construed by the court of common pleas of Miami county, and by two of the state courts of appeals, counsel, at my instance, furnished for my assistance such of the opinions and records as are available. It is gratifying to know that the seven state judges who have had the will under consideration, although not stating their views in extenso, all reached the same conclusion as that at which I have arrived after an independent investigation. When Andrew’s daughter Sarah K. was born she took a vested remainder in the 158-acre tract, which opened up, as his other three children- were born, to let them in. Harrison Youtsey’s heirs at law at her birth, under the rule announced in Gilpin v. Williams, became divested of the fee to saM premises, the fee then passing to her. On November 22, 1902, for a valuable consideration, she conveyed her interest in the farm by deed of warranty to her father. His mother, on or about the same date, conveyed to him her life estate in the premises. As he already owned the life estate, by his daughter’s deed for
On January 7, 1903, Andrew was duly appointed guardian of his three minor children, Hattie, George R., and Earl, by the probate court of Miami county, duly qualified as such, and entered upon the discharge of his duties. When Hattie and George R., respectively, became of age, they each receipted to their father as guardian for the funds belonging to them, respectively, in his possession. Such funds represented the proceeds arising from the sale in the partition proceedings of their respective interests in the 158-acre tract. Each also executed and delivered a deed to the father for the premises.
“A party ought not to be permitted voluntarily to take the benefit of a Judgment and then attempt to reverse it. No more direct affirmance of the validity of the proceeding [in partition] could be made than by claiming title to the money of the adverse party received in pursuance of it.”
“The action of partition forms no exception to the general rule that a judgment is conclusive of every matter which is actually and necessarily involved in its .determination. And hence, if the title of the property comes in issue, it is bound by the judgment. And now, in most of the American states, partition has ceased to be regarded as a mere possessory action, and has come to involv'e the right of property as well as the possession; and in such cases the judgment is conclusive upon every right or title which either of the parties, present, or might, have put in issue, in the litigation.”
The same rule prevails in Ohio, as will appear from cases cited in support of the above-quoted text, and from Dabney v. Manning, 3 Ohio, 321, 325 (17 Am. Dec. 597), in which it was ruled that—
“The proceedings and judgments .of the courts, in a petition for partition, must, like judicial proceedings in all other cases, bind both parties and privies, while they remain unreversed, however erroneously they may have been conducted,
“In this cáse the court of common pleas clearly was invested with jurisdiction over the subject and between the parties. Whether such interest descended to the heirs of Dabney, as entitled one of them to demand partition, was a. judicial question, which that court were competent to decide. It naturally arose in the cause, and the decision of it concluded all concerned until reversed. The adjudication upon every other fact in the cause was of the same' character.”
See, also, Randon v. Payne, 41 Ohio St. 303. It follows that by virtue of the partition proceedings Andrew became vested with the title to the premises in question as against all of his children. By the terms of the will, if Andrew should die leaving no heirs of his body, then the devise to him and his children is “to revert back” and. to be divided, equally between the testator’s living children or their heirs per stirpes. Considering Andrew’s age and the number of his grandchildren by his daughter Hattie and his son George R., the possibility of the, property passing over to Andrew’s brothers and sisters or their heirs is a negligible' quantity.
“To render a former recovery an estoppel to a subsequent suit, embracing the same matter in controversy with the first, the judgment must be specially pleaded. * * * If it be not so pleaded, and the defendant rely on the general issue, the former judgment is admissible in evidence, but it is not a conclusive bar to the action; the jury may still find for the plaintiff, if they think him entitled to recover.”
In Porter v. Wagner, 36 Ohio St. 471, 474, Judge White said:
“The question is not what the court might have decided in the former action between the parties, but what the court did in fact decide, as shown by the record. * * * The system of pleading under the Code does not affect the question. Since the adoption of the Code, as well as before, the question in each case is, what was adjudicated in the former suit? In answering this question, reference must be had, of course, to the pleadings as well as to the judgment or decree.”
See, also, Railroad Co. v. Hoffhines, 46 Ohio St. 643, 647, 648, 22 N. E. 871. What the state courts decided, and all that they decided,
A decree may be entered in accordance with the foregoing, finding Andrew possessed of a fee simple in the premises in question.