*1 Syllаbus. dence offered either the court found thereupon by party, issues for the A entered plaintiff.” judgment and a motion for new trial was overruled, writing plaintiff, n to which defendant excepted. is and the 1. There no find facts; special finding general of the issues for the to review this plaintiff ing open 112 U. Fairbanks, court. Martinton v. S. 670. counsel for the as
(cid:127)2. The discussed defendant questions town to issue the bonds referred the legal authority count of the ter arise first declaration. But fairly for the their determination cannot affect com judgment, n mon statutes of Illinois to counts are sufficient sup reference to without port any question judgment, described first count. to issue bonds legal authority Rev. Stat. Ill. Bond v. 110, Dustin, ch. § U. S. 604.
Judgment affirmed. McARTHUR & Others v. & SCOTT Others. APPEAL FROM. THE CIRCUIT COURT OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF OHIO. Argued Reargued January 29,1884 April 7, 8, 9,1884. March 2, 1885. — —Decided will, directing Words in a to be conveyed land to or among divided remainder- expiration men at the particular estate, of a presumed, are to be unless clearly provisions, controlled other to relate to beginning of .enjoy- remaindermen, ment and not vesting of the title in them. A testator devised lands and personal property to his executors and their sue! cessors, heirs, trust; and their income, and directed that until his youngest grandchild, might twenty-one live to be years age, should arrive at age, equally among should be divided children, the testator’s of any dying, among or the issue child also as ; successively age came of that “after the my children, decease all when and soon as youngest grandchild shall age arrive at the “ twenty-one years,” the lands should be inherited equally divided grandchildren per fee, my between capita,” in and that in like manner” personal property should “at equally same time be among divided ” n percapita; my grandchildren, said share and share alike any and that if grandchild division, should have died before the children, they final leaving ». scott.
Syllabus. per stirpes parent the share which their take receive would have should living provided if then have and receive been entitled to grandchild by any of his-share assignment,-mortgage pledge should be *2 distribution, void, executors, in the final division and should con- and the Meld, under the That vey pay persons and the entitled will. the .execu- to fee, ; hold until legal the title in to the final division and that the tors took also, Meld, as imposed upon them executors. all the were That trusts remainders, equitable opening vested to grandchildren, took let in those death, subject to only after and any born the testator’s divested as to estate, expiration before the of grandchild particular leaving died the who issue, by executory over to such devise issue. 17, 1811, providing Ohio of December that the statute of no estate in Under granted by deed or any person or to given shall be will persons, lands or being, or to immediate as in the issue or such are descendants' of- but will,” making such being, in the time of deed or a are at as dеvise of a testator, grandchildren of the remainder to with an executory vested devise died, grandchild, shall any leaving children, the who of share of over grandchild, age youngest coming the of before children of such least, valid, far, grandchild, grandchil is so as concerns the (cid:127)deceased dren, though the death. born after testator’s rights and will equity, directly whose in a suit in All interested suit, decree, they to unless the are by parties the must be made too affected numerous, ; not jurisdiction, being or in the of them some are out as to insure a the court every parties in must before and case there be such fair trial of in behalf of all. the issue estate, large important A the trust and duties to having powers trustee over it, necessary party by stranger a to perform respect to to a suit with a defeat the trust. probate power, specific authority, A court inherent without statute to has grant particular limited the defence suit. administration to to in A citizen of devised lands in that State his three executors in fee. ©hio trust, pay grandchildren young- until to to and the the income his children grandchild twenty-one years age arrive est should to be should who live age equal at that his convey and then to the remainder to ; die, resign, that if should or refuse provided shares and executor .others, act, executor, by the appointed a new to act with the should be probate, upon testimony the probate. court of The will admitted was 1831, witnesses, February attesting the statute Ohio of under appointed and and acted as such. Two them after- three executors were pro- resigned^and accepted were the court of resignations wards their probate set the will and annul the was then equity bate. A bill in aside filed, statute, against the children the under one of other children that they being, alleging only that were and all the the grandchildren then will, only per- and persons specified interested in the were the heirs and ; infants, -grandchildren representatives sonal those deceased each; guardian appointed was ad litem of third one of children executor, right, one of the made defendants their children own was OCTOBER TERM,
Statement' of Facts. trustee, and who was made a party as executor or and did not answer such, resigned, resignation as accepted by was the court pro- bate, suit, pending executor, that trustee, and.no other or administrator annexed will made party it was found jury with probate adinitted to instrument was not the' testator’s and a decree setting annulling Partition, was entered aside will probate. heirs, among decreed they was afterwards conveyed portions of the set purchasers lands oil to them for value and without actual notice of Held, any adverse That annulling title. decree probate was abso- lutely against grandchildren bom, void afterwards their entitled recоver shares against pur- heirs and chasers, might, if States, were citizens of bring different suit in the Circuit Court of the United States. Lamb, Holt Ohio St. followed. is a This bill the children of Allen C. equity McAr- a son thur, General Duncan McArthur, to of. enforce a trust and establish a title fee lands Ohio under the will of their grandfather.
The case was heard in the Circuit Court on the bill an- *3 it as swers, which be follows: appeared Duncan McArthur, of and Countj Ross State of Ohio, 12, 1839, died on instrument May leaving dated writing, to be October duly and attested purporting ^executed he as and his last directed empowered his execu his all lands' not tors sell and Convey described, devised his and other life, farm his wife lands not home now in for and Mason- Samuel F. Yinton, to Samson trust for question heirs, children and their the benefit of his five made surviving as' and further follows: various provided bequests, “ It will and direction that is lands and Item. my my [15.] of, herein lying not otherwise disposed Jots be sold; shall not but the of counties Ross Pickaway, with herein devised to the lands lands and lots, my together death, shall executors leased or said after her wife, by my to be best for made- rented out to the advantage, improvements thereon, last rents, or until or for youngest grand money or child which now hereafter have, have, lawfully I may of sons Allen or child of either said James C. my begotten, McD., or or Eliza who Efiie, Ann, of may my daughters Mary, of shall arrive live to be at that twenty-one years age, age. «. scott Statement Pacts. that; And further and direction Item. my
[16.] several after the sums of hereinbefore devised money shall first all cases and deducted therefrom, have been paid from to time time become due and the same shall payable, rents and so residue of the of the lands or profits overplus lots or and of the not of in let, be rented otherwise disposed counties Ross and and of the dividends aris Pickaway, stock me at the death, from the owned time my ing as shall said executrix and. of such stocks be purchased by my chil shall be divided executors, annually among my equally dren and be the twenty-one age when such divisions shall be which division shall made; years until to lease said made executors lands power my until the terminate, shall aforesaid youngest grandchild viz., above and described shall arrive designated age And said annual division of rents and years. twenty-one and dividends of stock be made aforesaid shall profits among said Allen Eliza Ann and 0., Effie, between McD., [Tames their share and children, alike, per share Mary, capita, , in for said children come share in annual division when shall attain the they respectively age twenty-one and in before; case of death of either of years, last-named said sons or a lawful child my daughters, leaving children under the child or children of such deceased age, take shall education per stirpes, and ihain parent the' dividends in such tenance, which such division deceased would, if have been entitled to And parent receive. living, child when such or children of such deceased shall parent come of the she respectively he, age twenty-one years, no shall take but shall then longer per stirpes, *4 and from thenceforth take said her or annual division his, their share per but the of one of such children capita ; coming of such deceased any of years parent twenty-one age shall not those bar. such children of preclude parent be still their from the full may to take minority continuing share, of such deceased And in said per stirpes, annual parent. division the children of Ker my daughter Margaret Campbell or the cheval, deceased, of children issue such said as legal
Statement of Facts. of ten shall for the after be deceased, annually period years one take share as receive, death and per stirpes, repre my to be mother, of deceased divided sentatives their equally of ten after them; and at years among expiration my death the said children said my daughter Margaret Camp entitled to bell not thenceforth take or be any shall part division thenceforth be division; said but the said shall made C., Allen James children, McD., said Eliza Effie, among my in the manner children, and their Ann, exclusively, Mary, to exclude directed, hereinbefore hereby intending altogether deceased children Helen from said division the my daughter .of Mar. and direction It is further will Item. after my [IT.] children now and and of all when the decease soon living, my in the next or last as the clause grandchild, preceding youngest and shall arrive at described, but one this will designated all and lots lands not otherwise my age twenty-one years, of Ross and and all said counties Pickaway, disposed my time, at that shall if remain unsold be lands, other shall inherited and divided between equally my grandchildren per the lawful issue of said and capita, sons Allen my C., daughters, James McD., Eliza Effie, and and Ann, them Mary, heirs forever, to' sell hold, or dispose same their will and like manner all the pleasure; stocks said whether my estate, invested before or belonging after shall at the my death, same time divided equally among said share my grandchildren, alike, and share but it' per capita ; is to be understood to direction be. that if my any grand- child aforesaid shall have died before said final made, division is a child or children leaving such child or chil- lawfully begotten, dren -shall take and receive per divided stirpes (to equally between the share them) said estate, both my real per- which the sonal, of such parent deceased child children would have been entitled to have and receive if at the living time of final distribution. In this and final last making division and distribution lands and stocks, I have my excluded the children of deceased my Mar, Helen daughters late wife Alexander Bourne, late Margaret Campbell,
McARTHTJR v. SCOTT.
Statement oí Facts. wife of Robert Kerche-val,deceased, their parents having my received their-full.share аnd opinion of portion estate. my And it Item. is further will my [18.] said chil my dren or or grandchildren, any them, their own act or in with the husband of conjunction any them, shall not have or power authority assign, transfer, or en pledge, mortgage cumber in his or her or any way share of the annual dividends or said estate profits my herein above but devised; such every assignment, transfer, pledge, or encum mortgage instrument brance, or device by any shall be whatsoever, wholly null and and void, proper such child or receipt grand or her or their child, his, authorized guardian, .lawful shall alone be a said and in my executors; discharge like manner every conveyance, assignment, transfer, or pledge, encum mortgage brance, instrument or device any whatsoever, made by any one of said or their my grandchildren legal representatives, by act or deed of him her or any them, or in qr with conjunction the husband of her them, or their whereby his, share of said and lands stocks the final distribution thereof shall be in- shall be of, or null-and void. disposed affected wholly any way lands, distribution my final direction And in such my thereof shall be made to and that deeds of partition be thus entitled thereto, and in names of those may no other the use of person whatsoever, and for name executed executors for by my shall deeds of partition executors more my to enable time and effectually being; duties this and devolved execute powers children and said my and them, against protect I devise to said executrix and hereby my fraud and imposition, all of them, the successors said lands so executors, and and divided as above, leased and to their finally directed the uses heirs, purposes in trust objects expressed herein which is above performance this my to have and to hold the title thereof directed prescribed, or no thereof, till division partition such final longer. direction that further the final And' it is division my in whose name then the executors the same aforesaid stocks and transfer to shall or be vested.in trust assign grandchild, TERM, of Facts.
Statement of such stock the share portion her his representatives, legal or her or his legal to such grandchild coming belonging *6 name of shall be vested that the same so representatives, the and receipts proper or legal representatives; such grandchild his her or or or of such or'legal representatives, grandchild the ex- shall alone discharge authorized guardian, duly or shall aforesaid may in whom stocks ecutor or Executors then be vested.” that executors shall direction give It is my Item. my [23.] in other as administration, for' faithful bond and security ' cases.” all carrying And for “Item. finally, purpose
[24.] will and testament this last of' my and provisions singular wife, Nancy and do nominate my I effect, appoint into hereby and Will Morris friends, and McArthur, executrix, my Presley executors; and Boss Bond, County, my iam Key Esquires, of. die, shall executors one оr more of the above named case it is will to law, or refuse to act and my qualify according resign, Pleas for said and the Court of Common County request as for the time or such other court hereafter Ross may being, shall business, and authorized to do be testamentary constituted or who and a suitable will nominate persons, qual appoint person and aot, supply person ify place places executors, me named and as herein by my appointed persons and act as or who after such, and may, qualify such act; and refuse or and die, accepting qualifying, neglect so to said be nominated and by persorf.'qr appointed not be the will an shall administrators de non with court bonis but the nexed, nomination execution court shall by nominated will, this individual had same been though to fill a this or as of nomina my vacancy, though power had been in some herein named; tion or individual vested person so' such nominated shall executor with act and be person executors for the, other time it intention my my being, being that the herein shall duties required always performed executors, that at least three number me herein named appointed.”
A a record of the Court of Pleas Common transcript
McArthur scott.
Statement of Facts. of Ross and State of Ohio county (referred the bill, and annexed to showed the it) following proceedings:
On will Duncan May McArthur alleged was to the court, produced oaths of the proved by attesting witnesses, to be ordered recorded. On the next day, court letters to Morris and granted testamentary Bond, the executors named and to Effie surviving Coons, additional executrix then appointed by court, inwill, pursuant testator’s place wife, who died before and the three him; executors so appointed bond with sureties as qualified law. On gave required June Bond 21, 1839, his of the office of tendered resignation wag. executor, an order which recited that accepted by the court was of cause had been shown opinion good On June 25, 1839, Morris likewise resignation. resigned, and his order. similar On resignation accepted by *7 October 1839, “EffieMcA. Coons this tendered having day her to the court of her officeof one of the executors resignation of the last will of the late Duncan late of McArthur, deceased, Ross it is ordered County, the court that the said resignation be, and the same is and the- said hereby, accepted, resignation ordered to be recorded.” On December letters of 4, 1839, administration on the estate of Duncan McArthur were granted to William and McDonald, he was and bond qualified gave accordingly.
A of a record of the same transcript court, sitting chancery, and (set'forth referred to in the showed the answers), following proceedings:
On 8, 1839, Allen C. July McArthur, the eldest son of the filed a bill testator, before the court, judges sitting forth the death of Duncan chancery, McArthur, setting of the instrument probate aforesaid аs his will the oaths of the witnesses, the in that instrument of his wife appointment and Morris and Bond to the death executors, of the wife before testator, and the nomination and appointment by the court of Coons Mrs. to act as executrix in her place; that Morris, Bond ancí alleging Mrs. Coons took them- selves the of the wiE; that Bond and executorship at Morris,
Statement of Facts. the then term of had present court, severally resigned, had been resignations and “that accepted; pro- visions of the said instrument in all acts to be writing done by the executors the concurrence of three require executors, tnat no suitable can be found whom persons the court are willing executors of appoint the said will; who are able the bonds give the said required instrument of the law of the land.” ..
That bill “further insists and states that the said instrument is void and of none because it effect, is wholly impracticable and cannot be carried into because effect; of its many pro- visions are impracticable and cannot be carried into effect; because tends to establish and does establish perpetuities, such perpetuities, which are to the of our in- contrary genius stitutions and. the of our and their spirit laws, and in- people ” “ deed contrary common and that the law; said instru- ment in is void, writing because its of them provisions many are in violation of and to the common and statute contrary ” and law; also that Duncan McArthur, the time alleged it, was of insane and not executing of a memory possessed ; and that it testamentary was never capacity executed legally as, and was his last will and testament. not, That bill who have further only alleged ” an interest in instrument were the the said writing complain- four children,. other James Duncan McD. ant;; McArthur’s Eliza Ann Anderson and Effie McA. McArthur, Coons, Mary Trimble, and Anderson Mrs. Trimble; the husbands of Mrs. son of McArthur, minor McD. minor three children of James minor son Anderson; of Mrs. Mrs. and a minor son Coons, C. her adult (with husband) Margaret daughter *8 Alex- McArthur; of Duncan a deceased Kercheval, daughter deceased another Bourne, M. Bourne, ander of Helen husband two minor sons and one adult McArthur; of Duncan daughter F. Yinton, and of.Mrs. Samson Mason Samuel Bourne and lands not now devisees trust of question. “ are the the aforesaid bill that That further alleged Duncan of the said heirs and representatives only personal that are also and McArthur, only persons specified they v. scott 34:9 Statement Facts. said instrument claimed as the will of said writing, ” Duncan and made them and McArthur; defendants; prayed
that an issue be directed to be made whether might up the last will of Duncan instrument was McArthur or not, and aside as and be set for further relief. void, might On in that 10, 1839, cause had leave July complainant to amend and the his was continued. On bill, October cause he filed a that a bill, supplemental alleging daughter had been born to Mrs. and was a Trimble, granddaughter Duncan McArthur, and as such entitled to a provision and an interest and that she supposed praying be made a defendant. might the defendants bill and named
Among supplemental bill in that cause were all the children and Duncan McArthur who were in existence at time during of that and due service of was made suit; pendency process on all of them. Mason and Yinton, trustees, were with served and filed answers, process, severally declining accept trust conferred them the.will, and in- all disclaiming terest the lands devised to them.
On October 22, 1839, the were had following proceedings in that The court cause: James appointed McD. McArthur ad litem his three minor guardian children; Mrs. Ooons ad litem of her minor son guardian ; Mrs. Trimble’s husband ad litem of their minor guardian Mrs. Anderson’s daughter; husband ad litem of their guardian minor son, of Mrs. Bourne’s two minor and Mrs. sons; Kercheval’s son-in-law ad litem of her minor guardian son; of each acceptance was filed. appointment
On the same answers to day, that bill were filed in behalf of defendants. all the The answers of the four children of the testator, James McD. McArthur, Mrs. Mrs. Ooons, Anderson and Mrs. Trimble, husbands the last two, as well as the answers of Mrs. Kercheval’s son-in-law, daughter Alexander Bourne his adult son, stated that severally admitted and confessed all of the bill. allegations The answer of Mrs. Coons further stated that since the filing of the same she has, term re- wit, of October, present
Statement of Facts. officeand of executrix of the said signed charge supposed will of her deceased father, last and testament the late General Duncan from a conviction of McArthur, her to dis- inability the duties' incumbent on her as such charge executrix, the. suitable associates impossibility procuring agreeably instrument said The several provisions writing.” of the answers infant defendants by ad Utern guardians would neither admit nor stated deny' allegations of the but left bill, them. complainant prove On the court same ordered that an issue at law day, be made between the of said up try will the.validity and to ascertain the' verdict of a whether said jury writing the valid will is last and testament of said Duncan McArthur ” not; and that that issue the defendants file making up ’ it to his will, declaration and the affirming complainant not his will. thereto that plead On defendants filed a October 27 the declaration and the On October 28 a was complainant plea accordingly. jury and sworn and a verdict that the returned' instru- empanelled will, ” ment “is not the valid last testament the said Duncan on deceased; and McArthur, the same the court day entered this decree: “ The to whom was committed for trial the issue made jury in. pursuance court, order between the respondents ex-, and the whether the instrument filed and complainant, hibited in this cause and to be the last Willand testa- purporting ment of the late McArthur, Duncan of Ross deceased, County, was or the valid last will testament the said McArthur, Duncan deceased, returned their verdict having the said instrument in tes- is not valid last will and writing tament of said c.ourt, McArthur, Duncan deceased; and heard the of counsel and haying advised arguments fully are of that the the. law premises, opinion equity case are with the and do and decree order, complainant, adjudge that the said instrument in filed and exhibited writing, to be the complainant, last and testament of the purporting said Duncan McArthur, and admitted to deceased, probate last will testament in the Court of Common 'Pleas of ». scott.
Statement of Facts. annulled, this set aside held comity, and the nought; infant defendants shall have until respectively they severally attain the full and six age twenty-one years months there-. *10 and after, the femes covert shall defendants respectively, until are discovert and six months thereafter, show cause, this decree. And it is further ordered against court that the defendants the costs herein pay taxed .expended, at dollars and cents. The forty twenty-five complainant’s,costs are taxed at dollars and thirty-three fifty-five de- cents. fendants’ costs are taxed at six dollars and cents.” seventy McDonald,
William on December appointed 1839, admin- istrator of of the estate Duncan as stated in JVIcArthur, record annexed to bill and present above ’mentioned, after- wards administered the entire estate of the personal deceased, and his final account was settled court on 2,1865. August for all
Upon petition the real estate of partition Duncan McArthur died seized, filed on 2, 1840, his April . Mrs. Anderson and husband, her Duncan daughter Mc- against Arthur’s other four C. children, Allen James McD. McArthur, and her Coons, Mrs. Mrs. Trimble and McArthur, husband, his two children of deceased Mrs. daughter, against Court of Common Pleas for Ross on Kercheval, County, made one sixth 17, 1841, them, April partition among part each Mrs. said Allen C. Mrs. Anderson McArthur, Coons, . to. Trimble, and Mrs. one the heirs McD. sixth to of James Mc- Arthur (who had died twelfth to suit), one pending each of the two children of Mrs. Kercheval. the rendition of the decree
Upon partition, thereto entered into of their and afterwards shares, possession made sales of thereof con- for valuable portions purchasers and without actual sideration, notice adverse title claim; and other they, through claiming them, the same improved respectively, occupied until of- and eleven period months, thirty-four years all use and bill','and that time their filing during present distinct, and notori- continued, was actual exclusive, possession ous, of title in fee under a claim and adverse simple, claims of all other persons.
Statement of Facts. aside the After the decree and before setting the filing one of bill, James McD. McArthur’s this died children him under nine and another child years was born to age, of. the son of Mrs. Coons unmarried and died, intestate, and she married “William Allen аnd had daughter by him; Mrs. Anderson had five more children born, of whom two died under eleven Trimble’s years age; Mrs. married daughter one three Madeira, died, children; .and and Allen C. leaving Duncan McArthur’s eldest had McArthur, five son, children born to four son. him, and a daughters
This also named Allen son, C. McArthur, youngest Duncan McArthur arrived grandchild twenty-one He at that on arrived March 4, after years age age. the death all the children of Duncan McArthur; he, with his four sisters and their all husbands, citi- together zens of Illinois or of are Kentucky, plaintiffs present *11 bill, which filed on March An 17, 1876. authentic of copy of Duncan McArthur, and of the original probate Wasrecorded court in thereof, probate Pickaway County on February
The in this bill all defendants were citizens of Ohio, and were the three children of James McD. McArthur, surviving Mrs. Effie McA. Allen, the four sur- daughter surviving children Mrs. Anderson, three children of Mrs. viving and numerous Madeira, different purchasers parcels land. from the for partition. proceeding The bill to present (without, mentioning proceeding n annul the set forth in the that, probate, answers), alleged after the death of Duncan his five McArthur, immediately children; obtain for themselves the real whole his desiring and and to his estate, of all the personal deprive intended for them his combined provisions unlawfully and confederated with other and, defraud persons, contriving and about the tender and plaintiffs, procured brought executors, acceptance resignations appropriated use and, own all his means of personal property, his mentioned, above divided all proceeding partition lands themselves, same among conveyed parts «. scott.
Counsel for Parties. in defence of their fraudulent and, other persons, conspiracy intestate, that he died as his doings, pretended children had his lands. inherited These denied allegations in the answers.
At the bill and the Circuit answers, Court dis-’ hearing upon missed the this and the court. bill, plaintiffs appealed cause was 1884. It first was re- argued January, order of the court. April, argued Lawrence for at Mr. the first Jr., appellants argu Maxwell ment. Mr. Maxwell and Mr. William M. for Ramsey appel at the lants re-argument.
Mr. Richard A. for Harrison H. David appellees Scott, of William Administrator deceased, David Allen, H. heirs at Scott, Scott, Effie H. law William Allen,' at the at the deceased, first also argument; rehearing April. Glenn, Trustee, for James M.
Mr. John W. Herron appellee, the first at hearing.
Mr. W. T. Dr. C. A. Trimble and McGlinUck Anna T. others, Madeira and heirs Trimble, deceased, Mary appellees, at first hearing. Caldwell,
Mr. for Johnson F. Lawrence Henry Crook- Page ham, Aristeus Luiz, Hulse, Levi Sarah Flo- Hepzibah Hulse. rence, and the first others, hearing. appellees,
Mr. on Jonas P. G. a brief of Hulse and Smith filed behalf M. Samuel Owens, appellees.
It is of of each these substance possible report elaborate without to other cases. arguments doing injustice Abstracts are coun- given: (1) appеllants’ argument ; sel of Mr. of so much of Harrison (2) (3) argument
vol. cxm —23 1884.
Argument Appellants. for of his associates, arguments as his supplemented argument, or varied or in from, conflict his with, positions.
Mr. Maxwell and Mr.
Ramsey
brief was
(their
appellants:
also
Mr.
signed by
S.
King
Mr.
J. Thompson).—
Rufus
I.
to the
A.s
question
1. The
perpetuities.
case is governed
the statute,
by
December
passed
17, 1811,* which has since
in force
been
in Ohio
2 Chase’s
continuously.
Statutes
Ohio,
It is not
disputed
the common law was in force in
Ohio
prior
of this
passage
act,
Co.
Railroad
v. Keary,
St.
Ohio
201. The
of Ohio in
policy
favor of issue and descend
act,
is shown,
ants
this
to be
by
more liberal than the common
In
law.
Ohio an estate tail is not alienable
the donee
by
tail,
Pollock v. Speidel,
Argument Appellants. for to has to extent cases show what gone uphold- following o 10 Ohi St. Evans, v. Stevenson wills- against- .'charge. v. 131; Turley Turley, 11 Ohio v. St. 307; McNeely, Gilson 15 St. 103.-—The Ohio Marsh, Brasher v. 11 173; Ohio St. ' It does not act. is a restraining, enabling act of 1811 an^ off it, It -by cutting, law. -the common modifies supersede an after which, within being, lives altogether period,- or the immediate in favor of issue estate must .de vest, except will; so at scendants being making.of persons being there devise persons ho may except rule the-common-law descendants^, immediate leaving issue or The statute or descendants. to such issue intact with respect of a does not partic necessity precedent contemplate issue or de: whose immediate ular estatе to the person need be" is scendant estate There subsequently limited.. if be one'it no there estate, granted may particular than, to, immediate issue whose some other one one. under the is valid ultimate estate grant given, .still fori statutes—2. The children .-predeceasedgrand provision if does children, hot affect deviseto validity illegal, “ ” It is' settled the words immediate issue complainants. .that ” in this statute mean children, immediate descendants include all to whom, the statute of an descents, inherit able estate would descend v. 11 immediately. Turley Turley, . Ohio St. 173 The are the immediate issue complainants at the and are therefore persons being making statute, the terms of the within and-the time for final distribution is within lives If after com twenty-one years being. issue of immediate plainants, being terms, its will, are, under within
making necessarily after entitled each lives' twenty-one years being, ascertainable the lands in re suit, part aliquot ; and it cover is no answer that other of those lands portions ¿re Duncan, limited to others too v. Wilkinson 30 remotely. ; Beav. v. 13 Sim. 111; Pownall, Benbow, 393 v. Storrs Griffith M. & 3 DeG. G. and 2 K. 46 & v. 11 Brown, Cattlin Myl. v. Hare, 372; Johnson, 441; Goodier Ch. D. Darling 483; v Gott, 641; Wend. . 24 Wend. Rogers, Savage Kane
Argument Appellants. v. Burnham, 576; N. Y. Downing Marshall, N. Y. 43 N. Y. Perry, Purdy Hayt, Adams *14 Y. 446; N. v. 8 Rich. Lowry Muldrow, Coun Eq. sel for Leake Robinson, v. 2 363 rely Meriv. appellees upon and the cases which follow it. cases do not decide .Those that a devise to two individuals, or void as to classes, one is, void to the or .therefore, that if the entire other; intention testator with to matter not be respect any. subject carried out, it fail lawfully must, therefore, or that altogether; if a includes in one gift description persons capable reason of remoteness, is, to incapable, by therefore, invalid as on all; and some of them contrary, ex they recognize, decide, doctrine. The pressly very opposite common-law rulé is in .the statement that a de completely expressed simple vise, to be must valid, all, if at within vest, necessarily twenty- one after lives in a child en ventre sa years being, counting mere as in which devise, vests within being. Any necessarily is ; and it is that in the same immaterial period good quite or clause, sentence or to the -with same matter, respect subject there be even that other devises are too remote, which upon the identical devise there be remote ulterior limit engrafted ations.
II. The It devise to the a vested estate. grandchildren has been assumed for far, thus purposes' argument devised, the estate did it did not vest at testator’s death. But vest then and that so, the of remoteness being question disap n The trustees took fee pears. estate, simple. Nothing legal less would suffice for the execution of the trusts imposed upon 86; Williams, them. Sears v. 8 v. 2 M. Russell, Rees Gray, & W. 749; Baldwin, 646; Garth v. 2 Doe v. Ves. Sen. Ed 4 & lin, 564; Ad. El. v. 2 B. & Ad. 582; Doe Moore Field, v. 11 Ohio, Burnet, 334; Neilson v. How. 98. Lagow, This of the claim that the estate to devised disposes grand children a' vested remainder limited legal upon legal estate trustees. Nor is the estate- of given grand children remainder. The estate of the grand equitable all; children is not remained a remainder at it is not what it is after out a estate, carving particular legal equitable; «. scott. Argument Appellants.
not an estate limited to take effect at the of a expiration prior but an estate; .the right, of a equitable happening par ticular event, wit, arrival at majority youngest the children dead, grandchild, the lands par Lamb, titioned, in fee them conveyed Holt v. simple.
Doe Considine, Wall. 458; Hawkins on Wills, 237- 241.—To prevent devise to perpetuity *15 before distribution dying be construed an as may estate tail. 127; v. 9 Mather, Allyn Conn. Doe v. Cooper, 1 ;234 East, 229, Humberston v. 1 Humberston, P. Wms. 332.
Where an instrument is constructions, to two the open one con other the or law, the one sistent repugnant give instrument and other will to the whole a effect destroy part, Pruden v. 14 Pruden, must Ohio St. adopted. former tail of estates is founded doctrine on cypres 251. The whole Wills, 181, on Hawkins this See quoting Moneypenny principle. . same, 182, & W. v. 428; v. 16 M. citing Vanderplank Dering, 3 1. Hare, King, 1. Record. Neither the com
III. the Ross As to County to this record. The trustees nor their were parties plainants far so as the land in only parties proceeding, of the testator, concerned, were children question The were not his then complainants living grandchildren. in were The trustees parties; then being. were made defendants the bill that the alleged A contest the will.—2. proceeding only persons specified of Ohio*binds thereto. will under the statute only a * time, proceedings under which these at the The statute in force 18, 1831, wills, February 3 had, relating Chase passed was the act Stat.
358 1884.
Argument for Appellants. It is not 'ex or the nature of a parte proceeding, proceed but a suit whose decree rem, ing personam chancery, binds but Lamb, none Holt v. Ohio St. This 17 parties. settled construction of statute courts of Ohio is by so if court, this as much of the statute. part binding upon Polk v. 9 Thatcher v. Wendall, Cranch, 87, 98; Powell, 12 6 v. Wheat. Chew, Wheat. Jackson Nichols 127; 153; 13 v. 5 Wall. 306; Wall. 433 Williams v. ; Kirtland, Levy, 102 U. S. 651; Barrett v. Holmes, Burgess Seligman, 20, 33; Warren, Black, U. S. 599, 603; Leffingwell McKeen Cranch, Christy Pridgeon, Delancy, be a Wall. 196. In order that there rem, proceeding the res must be a is, either that some act (1) thing guilty, in, must been init, done or with, contravention of some law the forfeiture of such misused as its having sanction; thing words, it must be a in other con hostile, owned or (2) thing trolled it must bе a indebted, public enemy; thing (3) is liable law for the of a sum of It is money. payment ,set manifest suit to aside a will is not in rem. Strictly is not suit, but a secure speaking, regis proceeding tration of a trust posthumous estate conveyance. legal —3. was not affected to set aside will. The proceedings did not divest the trustees of-the. but resignations estate; legal even if the estate did, to the heirs passed with the charged trust. Adams, Adams v. 21 Wall. Jur. 185, 192; Story Eq. 976 163 ; note Jeremy 146 to Co. Eq. Lit. Hargrave’s a; § on Spence Trusts, 240.—-It is Eq. Perry Jur. equally § clear that estate was not equitable complainants affected the suit to set aside the If will. it did not *16 vest at the- testator’s death in the grandchildren-then living, “ shall, (p. 1788), 1785. is as if person See. follows : That interested had, years probate by within after appear chancery two bill in contest the validity up, writing an issue shall produced be made whether the not; be the last the testator or shall testatrix or which be tried jury, saving whose parties, verdict shall be final to between the the court trial, ; power granting person á as in but appear new other cases if no in time, binding; infants, probate saving shall be to forever also married women, State, mind', absent from the or of or captivity, insane period removing like after respective of their disabilities.” SCOTT. McARTHTJR v.
Argument Appellants. ior n itwas not If it was then vested grand represented. to be di suit, it was who were subject children parties It is well that- to in after-born settled vested let grandchildren. not affected unborn such case are de rights holders. Downin v. cree Sprecher, Mary -against living 1 Vroom, land, 552; 474; Houghtalin, Graham Monarque 320 2 Yo. & Col. Williams, N. Y. Goodessv. Monarque, counsel on The cases cited this are Ch. by opposite point tail, or estates or suits for remainders, all cases of contingent See or trustees investments. Watsonv. change partition, 5 Madd. 3 Jones Lancaster v. Watson, 400; Thompson, Eq. 13; Adairv. New York v. Co., 428, 444; River Ves. Pilkington, London, 8 1 Atk. Beav. General Corporation Attorney 68. The essen Baker, Hare, Holland great remain tial difference between the nature of contingent which that, indeed, and that of an devise der, executory (and from the it material the one other renders to distinguish first be barred and consists in this: that the creation) different effect, or from several destroyed, prevented taking devise cannot means; whereas, rule, is a an executory alteration whatsoever prevented by any destroyed, which, estate out of or after which it limited.” on is Fearne Remainders, 418. If courts, where no is existence person inheritance, entitled to an estate of on have sometimes placed record an life, tenant been done un that has never existing issue, less the tenant was one if were to have whose he any, would become Parties, entitled on to the inheritance. Calvert 60. And the bill must contain a that the' specific allegation are on behalf оf and others. The themselves suing of one defendant to in a common interest right many represent is limited to cases where the issue are in the nature rights and to in which the of the suit cases general rights, object is at merely form change property not where its divest certainly destroy object tach— them. an adverse interest is an absurdity Representation by which the law unborn does not Thus the grand contemplate. in the suit children, fact, or in law being represented set aside the if the will will, their intact. Even estate remains
360 1884. Argument Appellees. Harrison’s for
Mr.
set
that does not out off the
of the bill.
aside,
law
equity
For a court of
trustees who
caused the
compel
equity
trust estate to be
themselves
fraud of the
conveyed
rights
17
the cestuis
to account as trustees.
trust
v.
que
Long Mulford,
509;
Mitchell,
St.
v.
29
57;
Ohio
Ohio St.
Hill
Rammelsberg
on Trusts,
on Trustees, 144;
Middleton
Perry
v.
citing
§
& Walk.
Reech v.
Middleton,
96;
1 Jac.
1 Ves.
Kennegal,
Sen.
2
123;
Vernon, 506;
Oldham v.
Mestaer v.
Litchfield,
Gillespie,
11 Ves.
638. See also Meader v.
Norton,
plies purchased legal title. ignorance Vattier complainant’s equitable Pet. Hinde, 7 Pl. The defend Langdell Eq. § who set ants that defence either have not up acquired legal had notice of the title. The title, or equitable probate title to-the devisees in the land record of the will devised passed the testator wherever situated in the State. from death 96 Ohio, Denoon, Ohio St. Carpenter Hall Ashby, no defence of innocent can purchase There 379, 395. Balch, Dick v. Pet. 30. See title. recorded of- a face Micou, Eaton, U. S. Wall. 156. Day Nichols v. As to Statute Pro Harrison appellees. Mr. —I. * it in Boss While Co'unty. proceedings bate —1. in force, the will remain neither and decree annulling verdict the verdict and de the actual proceeding not born-until who were nor the rendered, appellants, cree were nor contest, nullities, can treat' them after many years ' to de was, The of the suit them. object impeach collaterally All interested status writing' produced. termine legal The verdict and decree oper then esse parties. in- status of which was the entire legal instrument, ated ante, p. 857. *See «. scott. Appellees. Argument Harrison’s lor Mr. make the will and: contest
divisible. right righit statute. The latter— were created and the same regulated *18 time and in mode contest —within prescribed, right in will itself. issue could cut off The not be by any provision There were in not an suit. the contest was adversary strictly no- conferred the court The upon statute jurisdiction parties. first under the statute, over the itself.’ The thing proceeding and in set second, iswill, rem; ex prove parte in form so; aside the is probate, though original, equally The of the fact it is in the nature of an entirety ques appeal. Therefore the tion verdict decided each'court’is apparent. it' as a whole. The as a or annuls' whole, establishes court, and directing progress controlling preparation whether interested, must look to the contest, persons are to be not, affected, are in existence or because they sub the verdict. But neither question consequentially, it nor the to decide decision, mitted for who are jury direct reference to them. The verdict is against persons; it is in contest. The statute against thing prescribed suit; should be to the the time limited within it should be The born after brought. appellants, being expiration could time, not be made and as the instrument parties; be set aside as to could not interested remain living persons’and to unborn in force devisees, follows executory verdict and decree bind the See appellants. Singleton v. Acre, 8 Monroe, 340; B. Hunt 28 v. Ala. Singleton, Scott 580; 3 v. How. Calvit, 148; Murrin, Benoist v. (Miss.) 48 Mis v. souri, 33 48; Haynes Haynes, Ohio St. 598; Brown v. Burdick, 25 Ohio St. Meese 260; Ohio, v. 10 362; Brad Keefe, 20 Andrews, v. Ohio St. 208.—2. The case of Holt v. ford Ohio St. Lamb, 374, relied 17 is not counsel, opposing testatrix there The devised vested estates to point. the will was made when and took effect, when from contested. Aside this, is unsound, th.e ruling with other decisions conflict of the same court. Meese Ohio, v. 10 362; v. 20 Andrews, Ohio St. Keefe, Bradford 208; v. 14 Ohio St. Walker, Walker 157, 176; Brown Bur v. St. 266; 25 Ohio dick, Haynes Haynes Ohio St. TERM, 1884. Argument Appellees. for
Mr. Harrison’s interests in- often bind 598.—3. Decrees chancery property Coster, unborn Lorillard 172; devised to Paige, persons. Bassuet v. R. 13 L. R. Flower, 250; Moxon, L. Palmer Eq. v. De Wills Ves. Cross Slade, Valle, Eq. decree are as to Wall. If such a verdict inoperative when unascertained unborn and decree interests of persons cannot be set aside as to such the instrument then rendered, absolute conferred the statute and the all, interests at right The be frustrated. the will would purposes contest of alienation The would be nullified. right might legislature the terms of ad instrument, indefinitely, by suspended trial The to be after by jury. adoption judged nullity render the administration of of this would in cases many theory rule that we contend for is estates impracticable. —4. of titles on it is essential repose founded public policy; on it is wills; litigation founded necessary quieting *19 should will cases and decrees in contested verdicts binding in interests not esse and executory persons contingent upon See when the contest takes Mosier v. and ascertained place. 14 Walker, v. Ohio St. 29 Ohio St. Walker 255-6; Harmon, the above from and the other cases cited 157, 175, Kentucky, It and Missouri, Alabama, reports. Georgia Mississippi, —5. in of a will which'the is the of the cases court, validity duty to control Ohio, is contested under the wills act prepara tion, and direct and control the proceedings, progress unborn and and the interests of look to protect persons it is made, are whom devises although сontingent bequests and, come into uncertain such will ever whether being, persons will ever vest. should,- if whether interests even they The rule as to And v. above cited.—6. Calvit, see Scott decrees in actions whom upon judgments are is not a proceed personam applicable binding, of a -this to contest the will.—7. statute, validity ing, when The there were no executors existence fact it not entitle the to treat rendered, decree was does appellants as a of their they nullity; resignations upon acceptance execu was not have contestant obliged funoti officio. been a tors To done so have recogni would appointed. «. scott. 363 Argument Mr. Harrison’s for Appellees.
tion will. The to the powers executors were given to the not office, to the An executor given is to persons. as considered devised to him in holding property that character, unless from the face clearly appear will that the tes tator intended it to be held him as a trustee. State special Nicols, Gill & Johns. 27; Perkins Moore, 16 9; Ala. Steelev. 2 Ohio, Worthington, 182; Gandolpho Walker, Ohio If a St. trust is cast special as executor, execu tor, the execution of such trust is a his duty superadded official duties as ordinary executor, until he himself qualifies assumes to act in his as separate capacity trustee, special bond to his duties as perform executor binds him and his sure ties to the execution of such such cases he trust; acts in of executor, capacity not dees become a trustee special he until as actually qualifies Moore, such. Perkins v. 9; Ala. Newcombe v. Williams, 525; Met. Dorr v. Wainwright, Sawyer, Pick. Towne v. 20 Pick. Felton Ammidown, N. H. 202.—8. These executors did not or assume qualify, to act as Their was to trustees. trust all intents execu special The will devised title to lands torial. contest legal limited and not executors, for a nominatim. to them qua time — it vested in them as such. Their qualification, Upon themof divested them and the acceptance again resignations until the heirs, vested title it, and appointment legal ceased to be executors, of successors. Having qualification estate, were not did not necessary represent par It order sustain, ties to requisite suit. —9. the verdict “the annulling writing pro ageinst plaintiffs, ” as Duncan McArthur’s case duced apply *20 in not esse of virtual representation persons by principle that suit. If it to a actual necessary, principle parties the which the reasons upon could applied. According rests, the of virtual plaintiffs doctrine representation securely the suit were represented proceeding virtually present dece will, by grandchildren contest alleged The will to the were actual dent who proceeding. parties .to all the the lands in grandchildren, devised controversy as class, at the of the a testator, born unborn death whether 364 1884. Argument Appellees. ior
Mr. Harrison’s were, the title and vest every possession at one the same class time. Hence, member and actual to the con who were parties grandchildren take had, the contest was when it must when test, stood, will if at the same all, alleged place precisely relation after- as the who were devised, and the estate grandchildren were, wards born. It follows consid the circumstances and from actual must, parties contest, for the be held, erations of purposes necessity, Mead after-born to have grandchildren. virtually represented 210; 13 Lesseev. N. Y. Mitchell, Baylor’s Dejarnette, v. 17 v. Will 651; 18 Gratt. v. Sohier Davis, Gratt. Faulkner 152; 479; 386; 1 Sch. & Lef. Hort, 1 v. iams, Curtis, Gifford 444; 6 v. Beav. Gaskell, 643; v. Sim. Powell 7Wright, Gaskell the statute Watson, Ohio, 8 498.—10. When says v. Campbell ” it means- shall be final the verdict between parties all whether or unborn interest, actual present parties acts of of inter represented parties having identity The Order est with them. —11. court an admin appointing estate, estate of decedent, istrator as an intestate the final account of the order administrator, settling are conclusive and have universal effect. cannot be They nullities, nor attacked, treated as collaterally by any person. 1; Pick. Field v. 14 Hitchcock, Jennison Pick. Hapgood, Pishon, 31 503; 407; Maine, Howard, Clark v. Record Russel, 225 Sever v. 513.—12. Maine, Cush. If the complain relief,,their ants are entitled only remedy by proper of Common in the nat bill in the Court Pleas Boss County, review, ure of bill petition partition the entire Court, this treating pre proceeding will was set aside and nullities. annulled, absolute tended States, 10 Pet. v. Bank United 449; Voorhees Grignon How. 3 Wall. 319; Lesseev. Comstock Astor, Crawford, Wall. v. Tur 315; McNitt Reynolds, Coopers. ner, 8 B. Monroe, Wall. Singleton Singleton, II. The devises the land in would controversy supposed even the set ha/ve beenheld had not been void, pretended if estate.in fee the statute aside. 1. contravenes gift *21 v. scott. 'Argument Appellees.
Mr. Harrison’s for Ohio Under the against perpetuities.* provision it is that the estate not vest possible given might during lifetime of a when the will was nor made, at person being the death of such the lifetime of nor the imme person, during n diate issue of such It well settled descendant person. that this makes the entire void. From the ear gift possibility liest times the courts set themselves English against perpetui ties. First limitations to take effect would allow only the end of from one the testator’s death. Then this life was to include two or that more lives being; enlarged being as the one life of the lives. The regarded only next longest taken the courts was much but it debated; was step finally settled that an devise be made to vest at the executory might end.of lives in to allow after, for being twenty-one years of the next reason of could infancy taker, who, by infancy, not alienate the estate. 2 Madd. 289. The Biddal, Taylor statute of 10 and 11 c. 16, William III., provided having children en ventre sa born after father’s mere, death, should, for estates, deemed the limitations purposes to have of nine been born in his lifetime, a extension further or ten months was allowed for Good period gestation. man v. 2 Burr. 873. The next was to Goodright, allow step of nine months for at the period gestation beginning as term, the life in which the term would being run during be that of a child en ventre sa might mere. Blackall, Long T. 100.—2. R. This common-law as rule to perpetuities with legislature regarded insti incompatible republican tutions : this was the mischief which it attempted remedy by statute; This and kindred in other States aimed legislation fo from tied prevent and the property of its up, power As to disposition suspended. of this interpretation —3. It statute. was a and not an act. In restraining enabling Turley, Turley Ohio St. was held that a devise 'to children Of children predeceased in conflidt with ” statute, and immediate descendants all includes under whom, statute of descents, estate would have (cid:127)
* ante, page See note. OCTOBER TERM, Argument
Mr. Harrison’s
Appellees.
descended
from the
immediately
whose
particular person
are
*22
descendants
the
by
will to be.
In
required
Harkness
24 Ohio St.
it was
Corning,
decided that the statute
does not
the nature of the estate in
change
the first donee
from an
in tail
inheritable estate to an
for
estate
life only.
results,
other
which, as we contend
Among
flowed from these
decisions,
several
the
{a.)
following:
Immediately upon
the termination of a
estate
the death of
particular
by
in
the time of
person
being
will, to whom
making the
estate is
the entire inheritance must
particular
given,
im
in
vest
or
to whom
mediately
person
the estate in
persons
or
future
remainder,
estate
any
by
devise,
way
executory
limitation, etc.,
conditional
Grandchildren or
given.
(J>.)
or other immediate issue or
great-grandchildren,
descendants
in
at the time of
persons
will,
take
being
making
may
estate in
remainder, or
future
of execu
estate,
any
by way
devise, &c.,
in
tory
are
essewhen the
provided they
particular
estate
when the will is made termi
given
person living
death,
But
nates
his
or
(c.)
by
great-grandchil
or
in
or other issue
descendants of
at the
dren,
persons
being
will,
are born
time of
making
subsequently
in
when the will was
and to
made,
deatn of the
being
person
take,
estate is
cannot
whom a
(d.) By
given,
particular
future
remainder, or
estates
estates
law,
by
common
&c.,
be so limited that the vest
devise,
of executory
way
until after
life or lives
can
of the same
postponed
ing
but
the testator
twenty-one
years;
at the death
being
such estates cannot be
post
the statute
vesting
or
when
of a
the death
persons
being
person
beyond
poned
therefore,
limited as
be so
cannot,
was made.
will
They
or
death of a
until after the
per
not vest
person
that they
as soon as
made, and when and
the will was
when
sons
being
arrive аt
then
shall
twenty-one
or
being
persons
person
for life,
where estates
statute,
Under
(e.)
years
age.
at the
are
given
persons
either
equitable,
legal
the fee is so
that the
given
making
it is
take the same
descent,
to whom
given
by
respectively
for life
the tenants
respectively,
through
not by purchase,
scott.
Argument
Appellees.
for
Mr. Harrison’s
death
of the estates in fee
until the
cannot he
vesting
postponed
must
all the
estates
tenants for
but in such case the
life;
time,
in the immediate issue
from time to
vest
or descendants
and as each tenant
life
the issue or descendants
dies;
interest in,
each tenant for life
of,
fee such
taking
part
for life
as was held
each tenant
premises
respectively.
statute;
of a trust, condition,
This
cannot be evaded means
creation of future
or other
device.
limits prescribed
and in
Ould
and interests are the same at law
estates
equity.
v. How
95 U. S.
v. Washington Hospital,
Norfolk
Grant,
Brattle
Vernon, 163;
Church
ard,
Gray,
Square
settled that
155, and cases there cited.
It
well
is equally
the estate is
of which
contingency upon
happening
If
must
within
law.
vest,
the time fixed
happen
pos
the devises
later, the
sibility, may happen
limitation
*23
it are void. Ould
and Brattle
v.
creating
Washington Hospital,
Church v.
both
v. Bur
Grant,
above;
cited
Square
Nightingale
15 Pick.
rell,
104,111; Sears v.
Russell,
96, 98; Everitt
Gray,
Mr. Harrison’s for Wend. estates are future There are estates. 140. These of no words See also v. 2 present Marsden, Keen, gift. Eyre Blease v. 2 Beav. 226. If Burgh, a limitation be to of class, these of collectively, limit part beyond it is as remoteness, void to all. Porter v. Fox, Sim. 485. In this case all of class are limits of remoteness beyond the statute of tolerated Ohio. The devise of the lands to the in trust to executors receive the rents and does not save profits the devise at the grandchildren great-grandchildren living trust, from the of the statute operation expiration against The trust and un- alienation, perpetuities. suspends power - is less its continuance limited it is void in its law, according v. creation. 53. is Boynton Hoyt, Denio, Where land devised trust void as to create a the heir is upon tending perpetuity, to recover. entitled Miller, Penn. St. 326. The Hillyard contention that the devise creates an tail is untenable. estate “ “ children” The words are used the will grandchildren” as or classes of to whom descriptive persons, persons, ” “ rents and are to be distributed; profits grandchildren ” ” “ “ “ ” and child children of are further in whom fee is used to vest. as persons descriptive ” “ ” child and In the words are sense grandchild proper not are treated words of limita words of They purchase. out.a tion manifest intent a testa unless necessary carry an estate tail, tor. The will not but absolute did create the death of all the estate in fee vest testator’s simple children and the arrival the last youngest grandchild -without the statutes Even twenty-one. age perpe Ohio, devises would void in tuities these have been held where common never law this been rules -respect Bloom 2 Ohio St. Richards, Sergeant recognized. Beck, Ohio, Ohio, 305; Steinberger, King Counsel that the contend devise under appellants good rule that rule would ; but not English against perpetuities be held to had Ohio if statute enacted. been prevail See Harkness v. Ohio St. 416. Their Corning, proposition that the devise is the act of 1811, because'the good ap are the immediate issue when the pellants von. cxm —34
370 Argument, for Mr. Harrison’s Appellees.- is effect, will took also unsound. The be the appellants may not, are but of the class immediate others same issue; When one to an entire class. a devise is of matter subject gift includés one inca persons description persons capable is remoteness, the entire void. reason Ker gift pable by 1 Dru. & War. v. 509; v. 2 Cl. Candy Campbell, Dungannon, Roberts, 92; & Greenwood v. Beav. Smith 421; Fin. v. v. Robinson, Leake Meriv. L. R. Ch. Smith, a of the there is some class, And when a objects gift some effect cannot be riot, which too remote,-and are giveq latter, former, from but \Vhole is separated gift cases Wood, void. 22 Beav. 591. The Seaman Lowry 8 Rich. Muldrow; Burnham, N. Y. Savage Eq. side, on the other are not their claim point relied is that under the statute the devise not rendered void pro for vision made because that devise was great-grandchildren, claim, substitutional. We this merely (1) reply purposé will was perpetuity possible contingency —that which the whole estate have been divided might among great- ; and time for (2) of the estate grandchildren vesting the time allowed beyond act of 1811. postponed That was a not an act, as restraining, enabling explained of the- The statute sets opening argument. substantially bounds to postponement the com vesting, mon first set to law -devises.—The executory do not take estates tail under the will. The doctrine has eypres no to this devise, application because, the doctrine is (1) inap when limitation to the plicable unborn children them gives a fee. Pew, Hale Beav. 335. And the doctrine of (2) cypres is inadmissible where the intention of the paramount testator is to create and where the doctrine, if perpetuity,' applied, would his effectuate contravention of the declared purpose law.—The devises were object positive contingent, only as to the time when the estate should but decided, as to the to take. When the existence of the devisee of a con at a remainder time makes tingent particular the con part into it, or enters the remainder cannot descеnd. tingency, Ap between pellants disregard- contingency .distinction- scott. «. Argument Appellees. Mr Herron’s to- and a take, on the interest. contingent person depending *26 take when the event oc latter the In the representatives may first taker out not be the existence. curs, though pointed the former In the until nothing passes contingency happens. are who Where remainders sur only persons created event are to is obvious*that no take, vive a person particular event can take, does not survive the have trans a manifest There is difference between missible estate. and those in which certain defined ascer remainders persons, without reference are to take event, tained on particular of such event. Here the devise was to cer happening not. of event; tain defined on the persons,irrespective contrary, remainder is limited to who were not in the will was and who cannot be made, when ascertained until The here is annexed to the event the sub futurity happens. not devise, of the to the time of 1 stance partition only. on 645. The will bears of Wills, 760, marks Jarman having The use of the words been by thoughtful lawyer. prepared ” of when and as soon as show the date fixing purpose v. Hubbard, the interest should vest. Colt 33 when Conn. 281, v. 12 M. & W. Allen, 279; also 285. See Festing Duffield 1 Dow & Cl. 268, Seabolt, Augustus Met. Duffield, ; 155 Thorndike v. 391. Loring, (Ky.) Gray, to the Mr. in addition Mr. Herron, points presented by as defences on the of his client,. Harrison urged special part fide That he was a bona direct from heirs at (1) purchaser McArthur, of Duncan after the executors, law resignation heirs; title was, claimed, and when the as he vested legal and that title for a valuable consideration having acquired he had lands as heirs, to the improved paid occupied before suit his home As to the thirty years brought. Saunders, these facts he cited Jerrard v. 2 Ves. effect of Cranch, 2; Jr. Fitzsimmons v. Anketel Ogden, 11. of the Converse, Ohio St. The staleness (2) complain had claims. first to ants’ claim. two The the enjoyment They could occur left them under the will. That the property until the became second age. youngest grandchild OCTOBER 1834. Page’s Arguments Mr. McClintick’s Mr. for Appellees. of the of the will tci settled. question probate That done at an have been earlier date, might many grand were entitled set that claim children up prior interests were from those of inseparable complainant. Andrews, See Ohio St. 219. Bradford from a Mr. careful MoClmUoh historical argued review the of Ohio relating wills,* legislation proof pro Court of Common Pleas for Ross set ceedings County, aside of the will probate were a bar to the ting present On complainants. claim- he question perpetuities of Mr. rested on Harrison and Mr. arguments Herron. That contended, Mr. Page executors were not neces- to the suit to vacate the will. The sary parties the testator in at the date suit, esse to it, *27 time, had the remainder in fee at that and were the only in existence who had it. The parties present complainants could not be made but necessarily parties; they occupy as if had been. The remainder fee they same position let them was in, to that suit represented which opened who could it. The whole represent legal only parties * Territory and of State were cited following Statutes The : MoCUntick Mr. 30, 1788, 96; August act of 1 Chase Territorial Stat. 1795, 183; 19, act of June 1 Chase Territorial Stat. 84; 4, 1803, Chase Constitution Schedule 1 Stat. § ; Same,-Art. 5, III. Chase 1 Stat. 79 § ; 5, 1805, January Act of Chase 1 Stat. 493 18, 571; 1808, February Act of Chase 1 Stat. ; 30, 1808, February Act of 1 Chase Stat. 577 10,1810, ; February Chase Act of 1 Stat. 680 ; 19, 1810, February Chase Act 1 Stat. 685 ; 8, 1813, February Act of Chase 3 Stat. 769 35, 1816, 939; January Chase Act of 3 Stat. 36, ; 1834, February Act of Chase 1305 3 Stat. 18, ; 1831, February Act of Chase Stat. 3 1785 ; March 3 Chase Stat. Act of 1775 ; 3, 1834, Laws, Ohio 41 Act of March 33 Laws, ; 16,1839, Act of March Ohio 57 37 Laws, 33,1840, Act of March 38 Ohio 130. 373 «. scott. Argument Appellees. Page’s for
Mr. in the vested children and in remainder, both in life estate, be and it is to trust, pre of the testator and grandchildren the will. The did in defending their duty that sumed they suit who by parties claimed was estate now represented into the claimants, coming to it. had a represent right it. The rule find must take it as they general same estate, to is confined be parties all represented, parties requiring rule be in the issue. The dispensed involved interest Hallett v. inconvenience. or extreme with case of difficulty court discretion 15. is within the It Hallett, Paige, of a trustee, a without appearance suit proceed permit as when trustee are when all the cestuis trust parties; que Walley appear. reason be some cannot compelled See 12 Sim. 161. also Vernon, Vinten, Moore Walley, 10 Sim. Cormel, 85. Burt, Brookes 10 Beav. Seddon trust is not A trustee named who has refused a will one And Creed v. Creed, necessary party. Hogan, not to be a Richard was released never acted ought party. son v. Anstr. 65. And when the bill did Hulbert, states (as the bill in Ross no there are executors and none County) the defect of their had, can if it even non-appearance, excused. Maddock Ch. one, Pract. 178. It is disputed had been there been executors, should have made acting they but even if had been omitted, one else could parties have treated suit ? If void, in a collateral proceedings of defect had been raised at objection time, court the bill to amended. To might Required raise another suit after the objection thirty-five lapse raises different when For, neither years question. party *28 raises such an it is for the court to on objection, go competent settle the it, before without rights parties prejudice are not those who v. 5 to Lorillard Coster, 172. parties. Paige, case, And the omitted or their though privies law or estate may object objection judgment, (cid:127) third be taken a a cannot Muсh less can by party. party suit his trustee was not That the object party. —2. to the éxecutors trust was virtute The dqvise officii. annexed of the executors. office, person 374 1884. Page’s Argument Appellees.
Mr.
15
v.
Johns.
Warden
Ferris,
346;
Jackson
v.
11
Richards,
v.
8
418.
277;
Meetch,
Miller
Penn. St.
An
Gray,
executor,
office,
his
who renounces
renunciation
followed
being
of total non-interference with the
twenty years
estate, is deemed
to have renounced the trust, which is
personal
discretionary.
v.
23 N.
Bonsor,
Beekman
Y.
These
299.
executors never
a trust under this
distinct from the
accepted
executorship.
When
and their
were
they resigned
resignations
accepted,
title was
That the
extinguished.
not in
grandchildren
esse
—3.
to the suit to
parties by representation
aside the will.
set
Lorillard v.
5
Coster,
;172
v.
8
Paige,
Campbell Watson, Ohio,
498 Mitford Pl.
1 Daniel Ch.
;173
Pract. 274;
v.
Dursley
6
251;
Fire
Fitzhardinge,
Vesey,
Insurance
Eagle
Co. v.
2 Edw.
Cammett,
Ch.
See Faulkner v.
18
Davis,
Gratt.
684;
v.
13
Gratt.
Baylor Dejarnette,
152; Knott v. Stearns,
638;
U.
91
S.
Sohier v.
1
Williams, Curtis, 479; Nodine v.
315;
544;
Adams
Greenfield, Paige,
Freemam v. Free
Eq.
301;
9 Heisk.
Mead v.
man,
Mitchell,
Brevoort 2 Yo. & Col. Ch. Williams, opposed previous an unbroken fine of is in conflict with cases, English not in esse were That American cases.—5. was not That required plaintiff properly represented. —6. if the court That should have appointed. representatives —7. it is error executors, affecting juris appointed ad litem defence diction. —8. That by guardian effect of' 'the verdict counsel discussed the sufficient. —9. The That to wills.—10. under the Ohio act as judgment in Ross cannot be county impeached collaterally, proceedings of the omission to executors. because appoint Gray Mr. delivered the court. Justice opinion This : case three presents principal questions "Whether the estate fee. which First. Duncan equitable to his his will undertook to devise McArthur by grandchildren, or children of his five was vested ? children, surviving contingent the devise of thаt so far as it is to estate, Second. Whether ? was void for remoteness the present plaintiffs, decree in aside his will Third. Whether the setting suit is a bar to this % the probate, annulling of the will of Duncan McArthur, I. The provisions principal are as case, of this follows: decision material to the that his lands in the directs clause, he the fifteenth By shall be leased or rented his of Ross and Pickaway counties “ or last which I now until the grandchild executors youngest child of either of his five have,” have, or hereafter Eliza Ann McD., Effie, 0., James children, Allen surviving shall live to be twenty-one years age, “who may Mary, directs clause, that, he the sixteenth at that arrive By age.” and the dividends of lands, of these the income time, until that executors, his shall be him or all stocks held by purchased five children divided among them equally annually child dying, or the issue aforesaid, among grand- come also as successively age. children It is further follows: clause my The seventeenth provides the decease all children now my after and direction that will Opinion of the Court. and when as the and as soon last living, youngest grand- child, of this next clause but one preceding desig- *30 nated and described, shall arrive the age twenty-one all lands” in years, “shall be inherited and my question divided between the law- equally my capita, grandchildren ful issue of C., said sons and Allen James my McD., daughters, for them Effie, forever, Eliza Ann and and their heirs to Mary, have and to and of the same at their or to sell hold, dispose and manner all the and like stocks pleasure; belonging or after estate, .said whether before death, invested my my ' shall at the same divided said time be my equally among grand- share but children, and share it is to be alike, per capita; understood to if will and direction that my any grandchild aforesaid shall have final division died before said is made, a child or such child children leaving lawfully begotten, or children shall take (to and receive di- per stirpes equally , vided between estate, said both share real my them) and which the of such or personal, deceased child chil- parent dren would have been entitled to have and if at the living receive “ time such final distribution.” The word near deceased,” . the end of this intended to be passage, evidently prefixed “ to the word to the words child or “parent,” chil- instead.of “ so dren,” read deceased of such child or children.” parent “ clause, he directs By that in such eighteenth final dis- ” tribution of lands the executors for the my time shall “ make deeds of to and in the partition names of those who may ” “ be thus entitled thereto; enable executors the my more to execute the effectually and duties this will powers devolved them,'and to upon said children and protect my fraud and he against devises the imposition,” his lands to executors and their and to successors, their heirs, in trust for uses and in this purposes objects expressed will, and the of which is herein my above directed performance to have to hold the title g,nd thereof till prescribed, final or thereof, no partition longer.” By division. clause, he three appoints executors, twenty-fourth directs if either of them shall die, requests refuse'to resign, court act, having probate jurisdiction county sgott. «.
Opinion of the Court shall a new one Ross act as an instead, executor appoint with so that there others, shall be three executors. always The devise clause the title in the eighteenth lands to the executors and their successors, and their heirs, trust for the uses and have and to expressed purposes hold final until division them an partition, clearly gave until estate to last time. fee, Doe v. 4 Ad. & Edlin, El. Maden Law Journal Taylor, Ch. 569 (N. S.) there can be no doubt that, And as contended the learned counsel for the defendants, conferred and the powers trusts the executors were annexed to their office of imposed ex- (cid:127) and did not make them trustees in ecutors, another and differ ent Colt, Colt v. U. S. capacity. 581; Treadwell v. Cordis, 15 Ohio Gray, Walicer, St. 251. Gondolfo estate created in the sixteenth clause equitable gift *31 of the income to the children and an estate grandchildren, being must endure for the lives of the children' and en- might dure the lives of the throughout grandchildren, though subject sooner determined in the of contingency coming was an estate for áge youngest grandchild, technically life. 2 Bl. Com. 121.
The nature of the estate remainder created equitable the seventeenth clause demands more consideration.
The counsel for some of the defendants contended that it was arrival of the at contingent upon youngest grandchild In of view, whole twenty-one years estate age.- remainder, the termination of the being dependent upon par- that, ticular life, estate for time and not vesting’at before, would inbe effect an remainder legal equitable contingent then the issue grandchildren then of living, living deceased, theretofore as one grandchildren class.
In behalf of other defendants was contended that the re- mainder in fee estate for life vested imme- expectant upon in at the diately death of the testator, grandchildren living let afterborn opened and vested in them grandchildren, at and would be birth, divested as successively to the shares of die, those who should children, be- grandchildren only leaving estate, fore the determination of the life force of the direc- oí the Court. Opinion that such children should take those shares. In tion this view, took a vested remainder fee all grandchildren ; and the over to the children of deceased inasmuch any grandchild, gift it did not as any but depend estate, precedent particular of substitution for the devise in fee to by way that grand- was an devise. child, executory
For not the of reasons, least which are that many testators have mind actual usually rather than the enjoyment of their technical and that ownership sound property, as policy as convenience that titles well should practical requires be vested it has the earliest been period, settled long rule con- in the courts of struction and America England that estates, will, should legal equitable, given by always as regarded unless the vesting immediately, testator has by clear words very manifested intention that should be contingent upon event. future
In the will us, before the testator the income to be directs divided annually, specified changing proportions, among five children at his death and his until the living children, comes He no age. grandchild gives youngest part children He income to grandchildren. fee, when gives comes grandchild age, grandchildren youngest of deceased His children grandchildren. and the general-in- the income estate to the children tent give clearly so is-under long any grandchild age, grandchildren children, of the five to the issue whether such issue the principal his great-grandchildren. are his grandchildren should die If all the children before should come distribution the income age, grandchild *32 In if event, cease. that of the necessarily any would grand- children, should leave the effect of children age dying remainder the the contingent coming holding upon would, as that had the'youngest grandchild age contingency cut off from never share happened, great-grandchildren in direct estate, contravention of the intent of general The more reasonable the testator. is, inference that of the life estate determination death all children and by benefit was created, whose grandchildren, great- «. scott. of the Court. Opinion would he entitled to the remainder. grandchildren immediately Beav. Gilb. 296; Castle Dugard, Eq. Eate, Mansfield S. C. Cas. Ab. 195, construction, Eq. pl. Upon at some necessarily must contingency contemplated happen either the arrival of the at time, grandchild youngest death of all years twenty-one age, grandchil and the come within the settled dren under case would age; “ rule that a remainder is so limited as take effect in where if ever, determination of a possession, immediately upon to determine an event estate, which estate is particular the efflux which must the re time, unavoidably happen by mainder interest is in vests as soon as the remainderman esse his own death ascertained; but before provided nothing the determination of such estate prevent particular from remainder Considine, Doe vesting possession.” 144; Blanchard Wall. Moore v. 25 Wend. Lyons, v. Blanchard, Allen, 223, 227. in which
The terms the testator has his intention expressed likewise to a of the remainder in all his point vesting grand- children. of real estate only remainder to gift
contained of the clause, opening words eighteenth “ the testator directs after the decease of all my now children when and as soon as the living, youngest shall arrive at the grandchild age twenty-one years,” lands “shall be inherited and divided between équally my the lawful issue of capita, said sons and grandchildren per my in fee. daughters,” is not to This such gift as shall be grandchildren only living but it expiration particular estate; is to my the-lawful issue of said
grandchildren per capita, sons and my -words of all daughters,” description appropriate designate . . grandchildren. At the lauds are expiration particular estate, “inherited and divided” equally among grandchildren, “in like manner” the stocks are to' be divided” “equally them. The real estate and the are among personal property to the same and at the time. same clearly go *33 380
Opinion of the Court.
”
“ inherited
is
to
(which
The word
the real estate
applied
from the testator
his
taking
implies
immediately
only)
upon
take
from
as heirs
their
immediately
ancestor
his
death,
upon
.
in remainder,
death. Devises
of similar
bequests
use
by
“
as in this casé,
the word
words,
thén,”
preceded,
by
though
held to
been often
be vested from
of the
death
Downes,
v.
9
L.
testator. Bullock
H.
Cas.
v.
1; Mortimore
448
4
Cas.
Parker
5
Mortimore,
Converse,
v.
App.
336;
Gray,
Opinion of the Court. 3 K. Trust, & J. 280; re Bennett's Strother v. Dutton, DeG. & Jon. 675. *34 remainder, vested
The to the being according legal meaning of is not of the words to held gift, virtue of contingent by of the unless will, those provisions subsequent neces- provisions it. sarily The require provisions this will had subsequent other objects. that if
The direction
shall have died
any grandchild
before
division,
the final
children,
shall take and
leaving
they
receive
share of
the
the
both
estate,
real and
per stirpes
personal,
would
which their
have been entitled to
parent
have and re
ceive if then
intended
living,
evidently
merely
provide
children of
deceased
and
not to define the
grandchild,
or
nature, as vested
of the
contingent,
previous general gift
the
and its
effect
grandchildren;
is to
only
upon
gift
the share of
divest
deceased
and
any
issue,
grandchild
leaving
in
to vest
that share
issue. Smithers v.
Willock, Ves.
D.
Johnson,
441;
Goodier
Ch.
v. Blan
Darling
on Wills
109 Mass.
Jarman
chard,
(4th
ed.)
clause of
addition,
of the
will,
eighteenth
pro
or
visions that any
mortgage
pledge by any
assignment,
grand
that the
shall be
and
void,
executors,
child of his share
and
shall
to the
distribution,
convey
final
and
pay
per
partition
tends to show that the testa
under the
rather
sons entitled
vested,
to be
to be in
tor
the estate
considered
danger
and, whatever their
but for these
alienated
provisions;
being
be construed
be,
cannot
as
effect
making
legal
terms
which
remainder
previous gift,
contingent,
testator, as
from
intent of the
and the
appearing
general
to be
Hall v.
II. within the rule of law To come against per- ,1884. of the Court. Opinion or devised, or estate, must equitable, granted legal petuities, terms which, be one devise, grant according of a to vest contingency may by happening upon not take within life or lives (treat- place being possibility its mother’s a child womb being) twenty-one ing afterwards. years case at as the must oe m bar,
In the grandcnua youngest lifetime of and that was born his parent being parent, lifetime, testator’s the devise even grandchildren, the. over, the devise arrival grandchild youngest the children of years twenty-one age, grandchild deceased before that must take time, effect, as to necessarily devisee, within a life lives in every twenty-one the rule afterwards, therefore do not violate years law; it is to consider whether that unnecessary common rule is in force in Ohio.
The statute of Ohio in 17, 1811, of December force at the this of will and at the death, testator’s making different imposed restrictions devises of estate, real upon grants by .and enacting “ that in tail, no estate fee fee or lesser estate, simple, аny lands or tenements within this State, shall be or lying given deed or will to granted but by any such as person persons, are in or to the immediate issue or descendants of being, as-are at of the time such deed or being, will.” 2 making Statutes, Chase’s 762.
It was assumed at the and can be doubted, argument, hardly that in‘this statute the words “the time of such deed making or will,” which, as to a deed, the time applied both designate of its execution and of its effect, denote, as to a taking applied will, the time when it effect takes the death of the testator, and not the date of its formal execution. the law of By Eng land, of question remoteness the .state of depends upon facts at the time of the testator’s death, from though differing at the date of the will. existing Williams v. 6 Teale, Hare, 251; Cattlin Brown, 11 Hare, 382; Lewis on 53-60, 64; Jarman on Perpetuities, Supplt. 254. Wills,
Under the common-law rule a devise to against perpetuities, some members of class, not take within the possibly «. scott. of the Court.
Opinion Robinson, void. Leake v. Meriv. wholly period, prescribed Cas. that is because, But Pearks Moseley, App. Grant, Sir 'William “it is the as observed vesting, period the in of the and.not description legatees, produces “ is not to some individuals who are, the devise capacity,” 2 Meriv. 388, some who are not, and to capable taking.” estate devised law, The rule of the common which an vest, all events within a must at life or lives being and not to afterwards, has reference to time years twenty-one “ ” life or lives in no Even the reference being persons. are to for the testator is allowed to take, persons time, as the measure lives of now in select, any persons and the are not afterwards” existence; “twenty-one years the birth coming any regulated age person, not with a but with a are birth, death, and they twenty- begin, or to without life, one years gross, regard coming & Fin. soever. Cadell v. Cl. Palmer, of any person age, N. R. 202. S. C. 7 Bligh like effect can least, It is whether doubtful, say no which has reference Ohio, to the statute of be attributed who are not' either avoids devises to to time, only persons themselves, or immediate de- or the immediate issue being time of the at the scendants making being, the children of devise of their share to will. The parent’s -would,seem to before the time of division deceased grandchild those whose be valid as to parent, grand- great-grandchildren the time of his because testator, death, child living ” immediate at that issue person would whose also to parent, and valid time; any great-grandchildren, *36 before their had died death, the testator’s born after though if testator, be, because would a child of the grandparent, “ “ descendants,” of immediate issue,” immediate not certainly invalid as to time; at that who was child, that being in the case of whose (as those only, parent great-grandchildren the testator’s child Trimble), of Madeira, Mary Mrs. dаughter died after their death, grandparent, born since*the testator’s of of the life of the therefore, reason who, interposition by, ” “ nor immediate immediate issue were neither parent, TERM, 1884. Opinion of the Court. ” of a descendants when the person testator being died. See Evans, 307; Turley Turley, Stevenson 10 Ohio St. Ohio St. 173. however
But, the be, conclusion, may already announced, that the estate in remainder devised Duncan McArthur by was vested in all his grandchildren per with an capita, executory devise over the shares of those who should only die, leaving before the final issue, division, removes all in the difficulty ap of the statute to the plication shares devised to the plaintiffs, grandchildren testator; the devise to grandchildren, immediate issue of the being the making clearly the prohibited statute; and, even under the rule, the devise English over executory shares of de ceased to their if children, void grandchildren for remoteness, would not defeat the valid devise of a vested previous remain der to the nor alter share grandchildren, which each living would take. v. Brown, Cattlin 11 Hare, grandchild Selborne, 719, Lord Pearks v. Moseley, 724, 725; Goodier Ch. D. Johnson, The conclusion is these necessary plaintiffs, being grand- testator, children of the took vested remainders equitable under his But until the determination of the will. estate particular of all children death arrival at the testator’s years age twenty-one youngest grandchild reached that fee estate executors, age, legal n estate remainder equitable owning The had no to a title. conveyance legal right present filed little after one of the more than a bill, year plaintiffs, of the testator who who was lived grandchild youngest arrived at that must therefore of twenty-one years, age, age maintained, under the will unless title the plaintiffs of their has been defeated the decree rendered grandfather 1839, the will. aside setting will of Duncan McAr-
III. proceedings relating thur were had the statute of Ohio February 18, the material are as follows: provisions section a will
By devising any bequeathing personal or real estate executors, brought by property *37 v. scott. the, of Court. Opinion before the therein, interested Court Common any person the, and the Pleas, witnesses reduced to testimony attesting and if it shall that the will was writing, thereupon appear duly and that testator full and of sound mind executed, age was.of not under the court shall restraint, order memory, any with the taken, so to be recorded. will, together proof By is be recorded in the will 13, county section every is land devised. section if the executor 16, there any By dies refuses to or if act, named will no executor is any the court therein, named receive the will probate letters administration with the will annexed. grant also The statute contains sections: following “ 20. If within two shall, interested any person years Sect. after had. bill contest the probate appear, by chancery of the made whether the issue shall be validity up, be or testatrix will testator last of the writing produced which shall whose verdict not; shall be tried-by jury, between the final to the parties, court the saving power trial, new as in other but if cases; no .granting person appear time, in that shall be forever probate also binding; saving infants, married women, absent from the State, or of insane mind or in the like captivity, after the re- period of their disabilities.” moving respective 22. had from the Appeals may decision of Sect. of Common Pleas to the Court Court, when Supreme or other matter thereto shall have relating been contested.” Statutes, Chase’s 1786-1788.
The forms of thus with procedure, to the prescribed regard of a will and probate original aside of the-subsequent setting are some probate, their effect respects peculiar, has defined been decisions fully Court of Ohio. Supreme on the original probate testimony wit- attesting nesses, under section is to the analogous probate England in common form. The bill in subsequent proceeding by section to contest the of the equity, will, is validity in solemn form the analogous probate executor cited in the next of kin; and the exercised jurisdiction court and a court of jury probate. virtually yol. oxm—35
Opinion
Court.
extend to
real
Both
estate as
stages
proceedings
well
this
from the
personal property, differing
respect
*38
former
the
as
probates. Upon
subsequent contest,
English
the
the
issue is' will-
no
original
upon
probate,
only
and the court has not the
of a
of
Court
construction,
powers
and has no
the
whether the
authority
pass upon
question
in the will are
for
devises
void
remoteness.
v. Mears,
Mears
The
issue
no
the statute,
answer
being prescribed by
and if
filed,
is
one is
it cannot be read at the
trial
necessary,
the issue.
v. Green, Ohio,
Green
278. The
position
5
on the
as
record,
is
parties
defendants,
plaintiffs
immaterial;
all are
and if
actors
some of the heirs are made
plaintiffs
some
all
defendants,
have an
to contest
will.
equal right
15
v.
Ohio
Price,
1,
St.
Runyan
v.
20
Andrews,
Bradford
Ohio St.
220.
208,
-
The bill in
is so
far
an
nature of
equity
from
appeal
the same issue
tois
be tried
probate,
anew.
original
33
v.
Ohio St.
Haynes,
618.
Haynes
598,
But, strictly speak
it is an
on the
side of the
ing,
original proceeding
Chancery
Court Common
Pleas,
not,
does
until final decree, vacate
“
or affect the
contest of a will lacks
statutory
probate.
essential elements
an
It
has
the same
appeal.
par
ties as
the court
In
below.
it is
latter,
fact,
purely
ex
while
the Common
it
parte,
Pleas
is inter
Brad
partes?'
v. Andrews,
In a under the statute contest the proceeding validity a-will, it is error to render final a demurrer to judgment upon the answer; because the statute, requiring provision issue to be made in its a tried up jury, imperative terms, and was a view to enacted with prevent deliberately v. scott.
Opinion of the Court. of cases for the contest of wills disposition mere upon consent or form.” Walker v. acquiescence parties Walker, Ohio St. 157, 176.
If a bill to contest the
of a will is
validity
filed
seasonably
an infant heir who
is within the
clause of the
saving
statute,
and there is no defect of
defendant,
instrument
is found to be will,
no
decree is to annul the
proper
whole
order of
Meese v.
probate.
Ohio,
But
Keefe,
under
admitted to
claiming
who are not made
probate,
defendants to
bill
to set it
are not
aside,
or their
bound,
affected,
decree
rights
bill;
treat
maintain
nullity,
actions,
one
against any
claiming
it,
lands devised to them
the will 'as
originally
admitted to
Holt v.
probate.
Lamb,
The case of Holt v. Lamb, referred to, decided in just has so on important the case at bar that it will be *39 bearing to state it with appropriate some fulness. Sarah Stevenson land to her brother devised for and life, after his death George and divided between his to be sold four and daughters, ap- her him executor. a bill in filed under pointed Upon chancery him and the statute another brother the other against and brothers and sisters heirs at law of the testatrix which (to those the devisees remainder, were not made daughters, the will that was not executed and that parties), alleging duly the testatrix unsound and mind, was of an answer 'filed himby these the court, 1826, without denying allegations, framing issue entered a to decree aside jury, submitting setting the will. between the In upon petition partition brothers and sisters of the the land testatrix, was ordered to be and was sold and sold, to a who afterwards conveyed stranger, sold and it to another died in 1863, conveyed person. George and his four with their an action husbands daughters brought' the last and the heirs at law of the testatrix against purchaser to land. recover the case
That was and the de- elaborately learnedly argued, fence was rested on similar to those in the case grounds taken at bar. It was contended that the suit to contest the validity of the will was a in rem that were proceeding plaintiffs 1884.
Opinion Court. it; that not they necessary parties parties rep- Stevenson, executor, George resentation appeared answer cause, defended their and filed interests; been made should omission to that if parties, did not render the decree void them, make them against parties to the cоurt in could be availed only by applying to be made that cause parties, proceedings pending the decree for that in that court irregularity; impeach within have been of the court not jurisdiction they might and after so to' its time it process, great lapse subject court for that reasons declined to good must be presumed Ohio in. St. to be order them brought that after it had Ohio, Court observing But Supreme above Walker, cited, in Walker that been decided expressly at least voidable on of a rendered the decree the omission jury whether it was that and that determine appeal, unnecessary omission rendered the decree void, absolutely gave judgment in favor of the that, plaintiffs, upon ground having been made to the bill set aside the parties rights the will as admitted to originally were not probate decree, affected asserted this might action. Welch, court, whole Judge delivering opinion said: effect But whatever or to the decree, given of a in such case, verdict we have no jury hesitation in saying, ‘ ’ that effect must be the, confined to in the cause. parties ‘ n The words in the section parties,’ can have no quoted, other than legitimate meaning proceeding. This is their primary and that legal their im meaning, here is obvious, from their quite port used connection ‘ *40 with the of a bill in subject itself, which, chancery,’ implies That is made parties. still more from proper meaning obvious the that to fact, the words other would give do meaning in injustice, by in interest of a court. depriving persons day The cannot be in interest, meaning because such parties had ‘ been of before as spoken interested.’ And the sub the clause, .where effect of the sequent is it is probate declared, ‘ said it shall be forever without binding,’ naming any parties it is to be "whom so If upon the same was binding: meaning «. scott.
Opinion of the Court. different were in both forms of why intended places, expression ‘ ’ use the words between the Why parties employed in the other ? and omit them It one seems to us case, quite the intention that it was because was to what, express, plain ‘ in all to be fact, implied proceedings ought chancery,’ ’ ‘ to the none but the were to be bound parties proceeding “(cid:127) aside The decree the ifwill, setting all, thereby.” binding ’ ‘ between and it binds parties those' only binding ^ Although the will estoppel. be, way by may parties fact, valid decree are will, a lawful, parties estopped by it to be such it from will. But the asserting proving plain- not As to it is a them, tiffs are so valid and sub- estopped. are still will. from estopped by They probate sisting It is it is wilL to them as denying though commenced. case had never been Their stand chancery rights (cid:127) Ohio St. unaffected 385-387. proceeding.” wholly above referred decided in Andrews, to, In Bradford that where a contest held it was proceeding validity of limita- was-commеnced, within the statutory period will' action was saved some of the heirs tion, only, right and who to other heirs who were made ultimately parties, aside the their answers to set although joined prayer into the case period until.after brought also de- court, had of the' limitation In expired. opinion interested "Welch, livered it was said: If any by Judge person contest, faith files his appears, good petition verdict of a touch-' statute entitles him to a trial jury, that verdict will of the will; validity binding ing as such at the all be before the court parties interest of the time of its rendition. joint parties rem, this is a and the inseparable. Substantially proceeding matter court cannot take frac- subject jurisdiction (cid:127) either tions. The will is and the verdict indivisible, jury To sets it aside. save establishes whole, wholly to save it to all. action, to one is therefore, necessarily right is com- where the law The case to that class of actions belongs in interest either to hold the of all pelled rights or all to be barred.” saved, *41 uCTOBER 1884.
Opinion of the Court. the It is contended defendants the "casethat present decision inconsistent with that this Holt v. Lamb. But no from the we inconsistency. Apart perceive improbability court, the same as in that the Holt v. speaking judge intended to three overrule or before, to Lamb, years cast only case without it, a doubt that the observa- mentioning in the first sentence the statement relied on, tion that the “ all will be who verdict before binding upon parties time such at the of its as rendition,” court as well the as the affirmation, the that further already quoted, explicit proceeding “ is to the will inter set aside shows that the partes,” clearly no one, court had under thought any holding claiming admitted once to was bound the the will decree probate, had made it not been a to aside, the suit setting party it was rendered. 20 Ohio St. 219, in which Nelson, In Church Ohio Presbyterian St. Reformed law, decided a heirs at proceeding to of a the will, contest executors and statute, validity made defendants, were devisees one all the legatees except a silver and it watch; to whom was held gave person to make this before omission legatee party, that the trying the decree aside the setting and rendering the issue who had been made those defendants and error, for which obtain reversal of the trial might decree, taken part was not taken below. The court said: although objection “ a suit to settle a con instituting It is the duty plaintiff, are before the necessary parties to see that brought troversy, without doubt court.” And after intimating referring, to therein, Lamb, the decision Holt as of the correctness as to decree arose revers no in which case question drawn in the decree was effect of error, but the ques ible it held that and in which was suit, in a collateral tion rendered decree was in which the to suit parties them, not void to but that it was as decree, bound by the decree was void; in interest other as to all as to some of held as was void court observed others, respect in interest binding the persons to be erroneous seem it would necessarily the same property, «. scott. of the Court. Opinion ” suit; and referred the decision as to Singleton, Court Appeals *42 Singleton Kentucky Monroe, 340, 356, B. as a different view of'the effect of taking and that the verdict must be such a decree, holding binding in the not all interested Or binding upon any, upon of a to the necessary de- yet party .absence recognizing on for reversal 35 cree be its error. Ohio St. 642- ground 644. of in of the Court Ohio v.
The
Holt Lamb,
Supreme
decision
court
same
thirteen
years ago,
by
years
eighteen
recognized
in
v.
as
Nelson,
afterwards
Church
es
Presbyterian
Reformed
Ohio a decree
that
the statute of
aside
setting
tablishing,
who
was void as
all
in interest
a will
against
persons
rendered,
suit in
never
to the
which it
im
was
parties
a
of
question
or
in
must,
doubted
that
State,
pugned
of
will
construction of
statute of
citi
Ohio, the effect
Ohio admitted
of
zen of
in
the title
land
Ohio,
probate
State,
this court
evidence
as conclusive
accepted by
law Ohio,
even if a different construction has been
to similar statutes
the courts of
by
other
given
States. McKeen
Cranch,
v.
Delancy,
Polk v.
Wendall, Cranch, 87;
Powell,
Thatcher v.
The case of Fraser Jennison, U. S. 191, arose under a different statute of the State wholly Michigan, providing vacated the ordinary appeal, original probate; decided this court, accordance with point decisions of Court.of was that on Supreme such an Michigan, appeal, taken the heirs at law although, separately, validity issue, the will as was a all the single regarded parties ap- it. contested peared rule
The accordance with the funda- general equity, all is that mental in the justice, interested principles persons
Opinion of the Court. will be of a and whose affected suit, rights directly object made must be suit. decree, parties Exceptions from admitted, this rule have been considerations of necessity when convenience, or of some of the inter- paramount persons ested or not in are out of when jurisdiction, being, too interested are numerous be all But in. brought must be such case there before the court as to parties every insure a issue behalf of fair trial of the all. case, unborn, plaintiffs present yet been made actual not,
could to the suit course, aside the of their which the decree setting grandfather to be considered is, rendered; question remaining there was such virtual -their inter- whether representation the decree. This cannot are bound ests, question without first treated satisfactorily intelligibly recapitu- the facts. lating *43 to on the admitted
The will was probate testimony originally issued were of the letters witnesses; testamentary attesting in the and will, of the three named the two executors surviving the Court testator, of the Coons, Mrs. appointed daughter of Probate, will, place pursuant provisions execu- testator; who died before the and the three of the one and took so were and tors gave'bond, appointed qualified themselves executorship. of the will was filed bill in to contest validity
The equity children and five Allen C. one of the McArthur, surviving the father of these afterwards testator, heirs at law of the and four bill were the testator’s The defendants plaintiffs. that James McD. law, heirs at other children and namely, surviving Trimble, and Mrs. and Anderson Mrs. Mrs. McArthur, Coons, Trimble; all the chil- Mrs. the husbands of Mrs. and Anderson four children of the tes- of dren who had then been born .those three children then under and who were all tator, namely, age, child Coons, of Mrs. one of one child McArthur, James McD. of suit, born child, and on& of Mrs. Anderson, pending Ker- and son-in-law Mrs. Mrs. Trimble; son, daughter, and the husband cheval, testator; deceased daughter Bourne, deceased another sons Mrs. daughter three .the ». scott. Court, Opinion of the and Samsdn and testator; Mason Samuel F. Vinton, devisees trust lands not now in question. The as defendants in joinder, suit, Mrs. Kercheval’s and Mrs. Bourne’s and of children, Mason and Vinton, trustees, is be laid out of unimportant, because consideration; the will those children no estate gave lands, fee or for life, legal and Mason and equitable; Vinton refused to ac- trust, cept answer disclaimed all interest formally in the lands devised to them.
No executor and trustee general will was made a defendant in of executor and trustee. capacity The three executors who had and acted had previously qualified resigned, and their- had resignations been the Court of accepted by two of Probate; them a few before the bill was days filed, the third while it was and no successor either, pending; no administrator with annexed, appointed. only so far suit, is material to then, a? before a son and heir at
question us, law the testator, as and the other four children heirs at law, complainant, then minor -the each a child of one of being, bill children, as defendants. The that these those four alleged the will specified were the interest only having heirs and only and were it, personal representatives all heirs law were before the the testator. That court the Kercheval and true, for the children Bourne (with five at law. But, heirs were the according grandchildren) took as well as children, grandchildren, merely of them was title interests. To none de- any legal equitable *44 children of vised. The five the plaintiffs, complainant present in that well the children afterwards born of as as the suit, other all of testator’s the children, surviving and entitled the will his under to share with other testator, unborn, were and, could yet grandchildren, parties, being not be made And the testator, parties. although personally to interests of all his secure the and grandchildren, children declared, under the as he to them from will, and, prevent. defrauded or had devised the title being imposed upon, legal .successors, their and in fee to his executors and committed TERM, 1884. the of Court. Opinion he created, the the trusts which no execution of yet to them no executor testator, of the trustee representative personal no the the and administrator with will, appointed the at time of the trial was a annexed, proceeding party of final decree the aside issue the setting of the and rendering the and the will annulling probate. and to that who were age
The proceeding, only parties at the heirs in- law, were themselves, of representing capable and one of afterwards will, whom, aside the set terested bill for that filed' the purpose. father plaintiffs, present in- litem, represent opposing The ad appointed guardian then will, under the of each minor terest, being, grandchild at and as a law, heir interested was either its party parent, or was the hus- will, in his to defeat the the suit own right, of the at Each so of such a and heir law. band parent in his own behalf all confessed in the answer filed appointed answer as neither bill, his .the guardian allegations nor those All denied admitted allegations. appointments litem were ad all the made, answers were filed, guardians was in that ordered, and the issue to jury suit, the res- sole (who executrix was also one of remaining ignation at ad law and the'heirs tendered and ac- guardians litem) on the court one and'the same within probate, day, cepted before the verdict final "week decree. '. made in the fraud and charges, bill, actual present that decree, been denied in the 'conspiracy procuring having answers, down the case hear- plaintiffs, by setting answers, bill and admitted truth all upon having ing fact in must be dis- answers, statements taken took that decree proved. part obtaining Those for all the best thought doing thing per- But it read the sons interested estate. is impossible the verdict and of that base without satisfied that record without real contest, heirs decree were entered it was to set aside the in fact interest controlled whose law, as heirs attack the will, sides controversy.: both bf. aswill, own the defence of the as' right; devisees before court. ad litem only brought guardians *45 395 «. scott. Opinion of the Court. adverse interests, persons, appointment having of the ad litem then and made
guardians grandchildren living as so far those defendant, may, concerned,' parties parties a the been mere mode irregularity proceeding, n could not afterwards the- de- they collaterally impeach 111 cree. Colt U. S. 566. the Colt, v. But neither living nor guardians appointed them, grandchildren, represent estate devised could to his execu- represent testator tors in trust for unborn great-grandchildren.
In
suits
or of next
rights
affecting
residuary legatees
rule
all
is that
kin,
members of the class must
general
n bemade
Davoue v.
4 Johns. Ch.
De
199;
parties.
Fanning,
hart
2 H. W. Green
Dehart,
(N.
471;
v.
Hawkins v.
J.)
Hawk
note;
1
545 and
ins,
Hare,
on Parties
543,
Calvert
(2d ed.),
49,
Where
are
some
numerous,
them,
237.
only
will,
with the executor and trustee under the
are made
together
satisfied that it has
court,
sufficient
upon being
parties,
fair
secure a
number before it to
trial of
issue,
question
hear the cause. Bradwin v.
Ambler, 374;
Harpur,
4 Beav.
and 5
But it
215,
Beav. 134.
Harvey
Harvey,
would
that the decree must
seem
be without
prejudice
of those who are not made
come
rights
parties,
do
in before the decree.
Harvey
139;
Beav.
Willats
Harvey,
Beav.
Busby,
200; Powell v.
Beav. 444,
Wright,
450;
72;
Calvert on Parties,
Hallett v.
Hallett,
Paige,
Rule 48 in
Opinion of the Court. to do with construction effect of legal nothing *46 but had will, of the to the of only try provisions question will - as the no between it, or will and no with effect before of those not made The of rights those parties. rights the. made infant defendants, to show decree, the were saved the cause by terms of against express and decree itself until their the of of and statute the coming age afterwards; was made for six-months the no-provision the' after-born grandchildren. preservation rights is But the that at the time of the graver objection .rendering thé before it decree court had no one the office of representing executors, trust or the estate devised to the them. trasteó who' has over
A the trust estate, large powers duties to with is a it, important perform respect necessary to a suit a the party by trust, brought stranger defeat often the sufficiently beneficiaries. Calvert represents on 273; Kerrison v. Parties, 93 U. S. Stewart, Campbell Watson, 498. Where Ohio, for a married trustee Mr. woman was not made Justice party, Miller, delivering “ court of this the decree, the said: reversing Hów judgment the of this trust can clear without the decree property having court it is difficult to the see. the before This trustee was the how máde suit; pan the but effectual for that object of the absence whom the the title person is purpose MacConnell, O'Hara v. U. S. 150, vested?” 154. 9 a will been once admitted to When has the probate, estate, as remains can unrevoked, so the only adminis- long probate or the executor an administrator tered with the will an- The executor the nexed. the principal necessary repre- him, the estate vested of all sentative those interested “ “ the said Lord executor,” in all it; Hardwicke, cases sus- to defend testator, the estate for person taining him, Peacock Monk, Ves. creditors legatees.” Sen. 127, the settled doctrine of 131. By ecclesiastical English courts, to contest or the any proceeding probate of a rejection form, or solemn compel probate executor is a and, unless fraud or collusion is necessary party, suggested, will. executor, only party represent words «. scott. Court,
Opinion is to be considered Sir John-Nicholl, pars “prima facie ” Wood v. Medley, contradictor; prmcipalis legitimus Jenner, Herbert Sir and, Eccl. as observed 645, 668; Hagg. under the will, and is the legatees- protector represents with the care and deceased entrusted specially see his intentions carried and to his management property 236, 240, Curt. Eccl. into Hasted, effect.” Hayle in common form and there is When there has been probate the will annexed is no with executor, the administrator in solemn form to to be cited proper party prove be declared. show cause Gascoyne should why intestacy v. Chandler, 2 Cas. Lee, 241. temp. devise in
By executors, fee to these appointment by the Court trust, of Probate, and their acceptance *47 in them. real, title in vested the will the estate under legal The court resignation subsequent acceptance by of the office of executors no them from the doubt discharged of the duties under the performance of executors and trustees will. But the in title the estate, real which had once legal vested in them, could not be divested without a or conveyance, a decree of a court of or an the chancery, Court appointment by of Probate of new executors and trustees in with accordance the will. At common law, sanctioned or ordered conveyance, a court of by or competent jurisdiction, least a new appoint ment to pursuant the instrument created, the by which trust was would be to divest necessary the title of trustee; each and no or statute Ohio, decision in a different rule in this establishing has respect, been to our brought notice. The three executors and trustees had once such, acted as there accepted fore, still held the title. In re -legal Van Barb. Ch. Wyck, 565, 570; Drury Natick, Allen, 169, Wooldridge Planter 's Bank, 1 Sneed,. 296; 2 Washburn on Real Property (4th ed.) 513. And as holders of that title necessary to the parties suit. Adams v. Paynter, Collyer,
But even if the meré title could deemed, legal the upon the acceptance by Court of Probate the of two resignation of the executors and trustees, in have vested the remaining
Opinion Court. Coons, and the of her one, Mrs. acceptance resignation law, the in the heirs at more serious re- vested difficulty executors, heirs did not sueceed to the office of mains. The heirs, after her nor and neither Mrs. Coons all the resignation, it, the trust testator’s created could by represent trust. heirs were beneficiaries of that The not alleged were not made as did bill to be trustees, trustees, trustees; but were not actors of their answer support one of them individual only, asserting, by rights allegations his the others confession in their answers of those bill, and a title adverse to the will and to trusts created allegations, it. who had been ex- persons resignation, appointed ecutors and trustees did with dispense presence trust estate. It was and of the the testator representatives in their stead to others should rep- necessary appointed trust for resent the estate executors devised the will, of the oestuis trust designated protection <¡[ue be born interests of those who might especially not be ptherwise who could sufficiently rep- arid the future, resented. decree,
No force is rendered without additional given court, before having representatives found no could be Avhom that bill that allegation and who were able court executors Avaswilling appoint answer or1 bonds, allegation give requisite for her the office of Mrs. that one reason Coons resignation suitable associates. executrix procuring impossibility *48 court, which sit irrelevant the Those AvereAvholly allegations, of the of the to the issue in chancery validity' ting try single to assume be true. no or to had to upon, authority pass in the office of ex The and'the vacancy duty,, upon power will, to new executors under a ecutors pryfrustees appoint annexed, the trustees, with Avill or.-administrators of Ohio court of Statutes court as a strictly probate. acting 22, 18, 16, 25 3 1831', 1831, and March 12, February §§ § Statutes, 1779, 1787, 1788. impossibility alleged Chase’s the, office of executors to- accept' proper finding persons v. scoTt.
Opinion of the Court. no excuse affords more for a decree holding binding upon not otherwise it than would for represented, disregard had been admitted to ing probate, the settling as if estate the deceased had died intestate. can
Nor we doubt that the in court, the exercise the ap branch of its in its propriate jurisdiction, might discretion administration limited to the granted single object defending the will and the the bill probate against the heirs. equity Courts vested with the jurisdiction letters granting testa and of mentary administration have the inherent power a limited granting administration, whenever it is for necessary . purposes justice ; as, instance, durante minora estate, while the executor named in the will is under durante age; absentia, when he is out of the jurisdiction therefore has not taken out letters ad ; or litem, defend testamentary suit in while the of a will is under chancery probate contest; and the exercised courts this powers English respect courts of like this al appertain jurisdiction country, in the statutes under which act. Davis though specified 550, v. 545, 551; Williams Chanter, on Executors Phillips, 523, 502, Frazier, Cranch, 9, (7th ed.) Griffith Co., 92 N. 70;Y. Dock McNairy Dry Bell, Martin Polk, Sneed, 429, 302; Jordan Yerger, on Andrews v. Andrews, These defendants 7 Ohio St. rely bill ato the heirs equity by law showing aside a will set which has been Ohio statute ad- are not executors mitted necessary parties. probate, bulk case, a will But in that testator’s bequeathing charitable been to certain set corporations having property the executors the heirs aside bill against was that decided the execu- point only residuary legatees, the burden of the to assume defence, tors not bound thereof to the estate; entitled to expense charge said that, court, delivering judgment, ordinary analogy had been uniform, cases general, chancery, perhaps executors, as well as to make and devisees, practice legatees defendant, that, and even granting propriety, it did not follow that the exeeu- necessity, practice,”
400
Opinion of the Court. therefore tor was bound take himself the burden of the contest.- St. 151. The court 7 thus what recognized, Ohio self-evident, is indeed whether the executor is question bound make an active defence at the of the estate expense different from the he whether must be made wholly question so have an to. defend the interests party, opportunity he In later cases in State, represents. practice executor a has been and it has making followed, party never been intimated that his could be with, presence dispensed he has held not been of himself sufficient although rep resentative the devisees and to make the decree legatees on them. Ohio Holt v. 17 St. Re Lamb, 374, and binding Church 35 v. Ohio St. Presbyterian Nelson, 638, formed already cited. But costs cases rest probate generally even discretion of and are often not allowed court, pre Summerell v. Journal Clements, Law vailing party. (Prob.) ; 33 and note Nichols v. 1 Sw. & Tr. 239 Binns, ; Mitchell v. & v. L. Gard, Sw. Tr. Davies R. 3 275 P. & Gregory, D. 3 W. & ;28 S. Appeal, Miner, 112 Mumper's Chapin In no Andrews, Mass. 269. Andrews trust was created by but will; outright bequest existing corporations, to the suit, themselves parties capable representing own and under such interests; circumstances there would seem no reason Lave the executor should have why incurred been in the matter. any expensе Sombre v. Deane, Dyce Troup, S. C. on 11-9, 120; nom. 1 appeal, Dyce Sombre, Prinsep Moore P. C. 301-305.
The cases courts of cited in general jurisdiction, chancery of the defendants, behalf are from the clearly distinguishable us, case before themselves several naturally range classes.
Some of them were of mere of investment, changes leaving . undiminished the interests of all in its' property new form. Such were Sohier Williams, Curtis, 479; Faulk- ner v. Davis, Gratt. and Knotts v. 91 U. Stearns, S. 638. To the same class suits which are belong partition, either for a division in of lands before held in com- severalty mon, for a else sale land, whole and a or in- division «. scott.
Opinion the Court. *50 for the of who, benefit those the but proceeds vestment for had in In interests the land. the sale, the would case of it itself, division of the land a strict is sufficient partition, by the owner, the some tenant or, cases, to make for present life of each because share, a the interest those who party, him is come after not otherwise affected than by being changed from an estate common to an estate v.Wills severalty. v. 498; 6 Ves. Gaskell 6 Sim. Slade, Gaskell, v. 643; Clemens Y. on Clemens, N. Calvert 259. In the 59; Parties, 60, 37 case sale of the and a division or land, investment partition to the interests the several shares, proceeds according interests of all correspond proceeds land, interests in the and are secured decree respective N. v. of sale. Mead v. Y. Basnett Mitchell, 210; Moxon, L. R. 20 á for of either kind, But decree Eq. 182. partition cuts off from remaindermen, esse, not then when having, come into in either land or they interest being, any proceeds, bind; does not them. v. Y.N. Monarque Monarque, v. Downin 474. Sprecher, Maryland, Another that class cases is creditors, are entitled of their the future whoever be present debts, payment owner of the estate. For instance, a bill to enforce debt real life, estate devised with contin charged upon one to his remainder unborn son, executor thé gent tenant for life are sufficient because, as' was said parties, ago by long Lord if is Hardwicke, there “ no one in whom the estate of inheritance is it vested, the creditors are impossible say to remain and the trust to be executed until not a son unpaid is born. If there is no first son in the court must take being, the facts as stand.” Finch v. 2 Ves. Sen. Finch, 13 Gratt. Baylor 152, 168. See also Dejarnette, Goodchild Beav. Terrett, 398. In some other cases, when all the interests are legal the owner first estate equitable, of freehold, representing estate, identified whole in interest with all who come him, after those unborn. sufficiently In the represents yet case of an estate tail, for Lord instance, Redesdale held to be sufficient, in order to bind remaindermen, contingent bring ’ vol. cxin —26
Opinion of the Court. court first in tail before the tenant in infant, (although law of if ho tenant capable barring remaindermen), tail in entitled to and if first the inheritance, being, person no such then tenant for life. as But reason person, master of “that signed was, great equity pleading where all the can are before court that brought before and the court acts on it, brought property according without decision must of fraud, its rights appear, final and conclusive.” & Hort, Sch. necessity Giffard on Lef. 386, 408; Parties, Calvert 55-60. The necessity case reason for this, it follows that where only the successive estates are equitable, supported legal in trust, estate devised the trustees also are necessary parties. 619; S. West Ch. C. 1 Hopkins Atk. Hopkins, *51 590; v. 2 Jacob & Clinton, Cholmondeley Walker, 1, 133; 5 v. Townsend, Mullins N. R. 567, 591; S. C. 2 Dow & Bligh Parties, 438; 400; Cl. 430, Ex 12 Sim. Calvert Dering, on parte 253, 327. in case of a bill in
So the construction of a equity in order court, from to the trustee necessity, protect to and- to instructions as the execution of the proper trusts, give is to settle and effect sometimes of con obliged validity not even in persons But, was tingent’limitations being.. 1 Valle, said Mr. Justice Grier Cross v. Wall. 1, 16, De “ It is this the court make such necessity compels ” and, rule ; cases as Chancellor Wal general exceptions 5 Coster, v. 172, worth observed Lorillard 215, there Paige, must the executors and trustees cited, considered as the of the in esse” representatives rights yet legal are v. 6 And necessary parties. Nonnelay Balls, Jur. 13 Flower, 250, v. L. R. cited 550. Palmer for the Eq. In in which the court defendants, construed a will without bring suit, born who had in a child like interests pending ing court, before the the trustée with already a party. bills in In the cases which without an executor equity, administrator made a been maintained while being party, or the administration was in the contested probate being the court court, ecclesiastical exercised a chancery jurisdic- v. scott. 403 Court. Opinion, courts ecclesiastical ap of the with that concurrent tion, administrators, pre for the purpose simple special pointing entitled some until there was person property serving v. ; King, Atk. 2 378 Clark, King v. it. receive Montgomery ;85 Watkins v. Ves. & B. 2 v. ; Henshaw, Atkinson 172 Ves. 97; 2 Macn. v. Whitworth Whyddon, Cr. & Brent, Myl. 3 Chase’s 1831, 8, Í2, of March ;52 of Ohio & Statute Gord. § bill of a circumstances, discovery, like Under Statutes, 1777. a debt. Con to preserve can be maintained only of real assets Penson, v. Plunket Freem. Ch. Stroude, v. way Atk. 51. - assets of a administration In a suit which general relief allega is prayed, a deceased neceNary person court for grant a suit tion that ecclesiastical pending bad on held from bill of administration may prevent administration is if because is sufficient ; demurrer equity a hearing upon time bill before obtained at after filed ; 154 v. Lut 149, Fell Watts, merits. Penny Phillips, Ch. Barnard. Humphreys Humphreys, 320 widge, Milman, Sim. 351; Simons Beardmore P. Wms. it has & Mil. But 2 Hem. been held Gregory, uniformly cannot to a suit final when decree, even proceed the executor is out no has been executor jurisdiction, until 'an of a personal appointed, appointment representative within the been made jurisdiction, has competent and it to be court; séttled must this appears England administrator, unless the court of general probate, upon *52 made to it for administration, insists on application appoint administrator litem ad Mitford Pl. (4th ed.) only. ing Bell, 1 178; v. Keen, 2 & Cr. 177, Tyler 89; Myl. 16 v. Jur. Lane, v. 24 Beav. Robinson, 1061; Devaynes Green L. R. 15 86, 98; Hills, ; Morris, Rowsell v. 79 Cary Eq. . Dowdeswell, 20; L. R. 17 Ch. D. 294 Eq. Dowdeswell while the of. In wills in the ecclesiastical England, probate court conclusive as to estate court of personal only, a bill creditors for the sale of real estate for chancery, upon debts, beneficiaries to trusts enforce payment will, indeed a decree as between created by might .render
Opinion of the Court.
sometimes,
before
it;
incident
such decree,
parties
that,
declare
as between them,
would
the will was established.
no decree
the will
But
absence
establishing
law, even if out of
heir at
or not
be found,
jurisdiction
him.
2 Atk.
Baron,
bind
French
S. C. Dick.
could
138; Banister v.
Dick.
Smith v.
599;
Hibernian
Way,
1 Sch. & Lef
Fordham
Co.,
238, 241;
Mining
Rolfe, Tamlyn,
3, and
Waterton v.
Sim.
note;
431; Mitford Pl.
Croft,
Pract;
on
1 Maddock
Parties, 218-220;
604;
Calvert
Ch.
Rule 50
Pl.
As under the statute of as construed Supreme State, Court of decree aof will is annulling probate erroneous, but merely void, as irregular absolutely interested the will and not against persons to the parties decree, as these neither nor con- plaintiffs actually structively decree aside will of their setting it follows that that decree no grandfather, bar the asser- of their tion under the To rights will. extend the doctrine constructive and virtual courts of representation, adopted by sound, on considerations of equity policy practical necessity, this, ato like in which it is that there was no apparent decree real the interests of these representation would plaintiffs, to confess that the court is to do to suitors powerless justice who have never before had a hearing. the heirs at subsequent and the partition law, among them to third
conveyances by for valuable considera- tion, cannot affect the title of these All the facts plaintiffs. *53 scott.
Opinion of Court. of record title that depends appeared judicial whеther claiming of which persons,
proceedings, all. to take notice. The were bound will and will, to the adversely record in the were of thereof county original probate - The as was there which the recorded granted. probate devised to these and to the estate the ex plaintiffs showed The the will ecutors in trust for them. recording pror in which there land bate in other devised was county any of evidence to for the and not effect only, purpose give required Hall v. 99 Ohio, to the Ashby, 96, Carpenter probate. 29 Ohio St. 395. The record of the decree 379, Denoon, .setting the will that neither these nor aside showed' ex plaintiffs, or successorsof ecutors executors trust, parties suit; title under the consequently plaintiffs’ as admitted to was not affected will, originally probate, must therefore look decree. purchasers subsequent no as vendors, these equity against plaintiffs. of land sold under a decree Even a equity, purchaser though mere the mode of he is not affected by irregularity pro which the decree suit parties ceeding against rendered, observed Lord Redesdale, been as has yet, is to see Court that all Ohio, the Supreme repeated and that court, are before bound to be taking proper title that cannot be he takes impeached the conveyance Lef. Massie 566, 577; Sch. & Hamill, aliunde. Bennett 381. Donaldson, Ohio, annul or a decree not seek impeach suit does
The present of a but to a State court probate refusing granting accord- under a granted the title probate assert plaintiffs that law, stands Which, State, the law of the ing between unaffected, proceedings them,'by subsequent their title. The case establishes and conclusively other parties, Davis, Ellis v. U. difficulties considered thus avoids the and cases there cited. S. he reversed, must Court
The decree Circuit therefore in con- the ease remanded proceedings further for' with this opinion. formity OCTOBER TERM, Waite, Dissenting J., Harlan, Opinion: O. J.
Mr. Chief Justice Waite Hartan whom Mr. Justice (with, concurred), dissenting. Harlan
Mr. Justice unable to to are this myself agree In our the decree of the Ross Court opinion judgment. County Pleas, of Common aside the will of Duncan McArthur, setting on is the in this case. The of devise the binding complainants was in its effect to a class of property dispute legal persons, is to the the lawful testator, say, grandchildren children, issue of his five when the or last surviving youngest ' should arrive at the If a grandchild age twenty-one years. the died before division the estate, child grandchild leaving share to children, his or her was his or her child or go All children of testator, children. the the and all the grand- children in when the rendered, decree was were being to the suit. Thus that at time of the decree all appears then in life the class of devisees to which the com- in court were to its belong jurisdiction. plainants subject This court now decides that these grandchildren, living death of the took in testator, vested remainder at equity once, and let afterborn open subject grandchildren. case, it seems to us that Such grandchildren whom estate vested those to be born represented after- wards for all the a contest of the will under purposes Ohio statute At governing most, the exec- proceeding. held utors and the executrix the naked title. only The legal in the title was Under these cir- equitable grandchildren. cumstances the failure to cause new executors to be appointed after the those who had resignation legally qualified, su. in as them in our parties, not, fatal to bring opinion, The entire decree. estate was equitable represented by and whatever is sufficient bind being, them grandchildren as we bind also must, think, those the same class devisees themselves were with afterwards born. The devise of the title was to the executors legal and the of them.” two successors executors who qualified resigned their offices,and resignations before the accepted, Coons, Mrs. executrix, suit was did not begun. until resign and she was made afterwards, to the suit party both her
McAETHTTE «. SCOTT. Harlan,
Dissenting Waite, J., Opinion: C. J. and individual Before her representative capacity. resignation, was and before the suit she had succeededto all begun, the rights of the executors She was the successor of property. had and as such executors who alone resigned, represented suit, continued a title. She until party the final' legal is difficult to see, therefore, decree. It the naked why legal was all the executors took title, the will, was suit the whole during course of represented proceeding. or not is.
But this so to our whether minds a matter of no The suit to contest the brought will. The importance. testator, lawful issue of his five formed one class of children, enumerated beueficiaries provided *55 class, As a their interests were for in the will. opposed of the class Those who were in took contestants. being as for for themselves those who title as well should be after- The interests those in born. wards those born being in all afterwards were It same. would respects seem, there- bound those who held that whatever fore, title should bind for all those not then whom held Otherwise, it. no suit can to contest a Ohio, within brought except after it is difficult two to see how a will can be probate, years contested there when devise is to a class of full until not be after that has It is no period elapsed. of executors to a will defend duty contest. part against That is left to the devisees or those interested in sustaining As in our this, case, will. we have opinion, disposes to refer deemed the other unnecessary specially which were argument. presented questions been of did Mr. Justice not sit counsel, having Matthews, or take the decision. in this case, any part