*1 guilty the evidence until found beyond guilt establishes doubt. reasonable probable cause of test applied guilt when is that which determining magistrate examining charge against whom that a over to bound is made should be grand jury. Judgment remanded. reversed. Cause Prosecuting Attorney, Jackson, JJ., H. BARNES, D. concur.
GEIGER London, plaintiff-appellant. London; Tootle, D. M. & Crabbe London, Richmond, S. C. Baber. Johnson, London, for David A. E. W. Fitzgerald, Jr. FITZGERALD, SR. et SLAUGHTER Appeals, Dist, 2nd Madison Co. Ohio 143. Decided Nov.
No.
OPINION By GEIGER, J. appeal This is an from an order the Court of Common Pleas of Madison County, Ohio, rendered in the above case, in an the Treas- entitled County Madison for the fore- urer of closure of a tax lien on certain real estate, amounting $4,420.02. All named were served either by publication, personally and all in default answer or demurrer. thereupon found in The Court favor plaintiff, as Treasurer and held Fitz- due from A. there was David tenant, gerald, Sr., Madeline life Evelyn Fitzgerald and Da- remaindermen, fee vid taxes, delinquent simple, total which, the time of amount $4,538.10. entry, was It the Court ordered pay same with- defendants less the 6oo period, right growing in a limited for contemt out of his failure redemption pay purchase price. rep- foreclosed *2 paid estate sold. resented that Sam C. Baber Sr., Thereafter, Fitzgerald, $1,095.75 price purchase has David A. on the but pay default moved for vacation the refused to balance. the by judgment application he now and reason that was Baber answered the willing pay
ready, alleged and to the cur- the sale able that the time of Attorney year Prosecuting plus rent taxes one of the back the Sheriff and Thereupon, provided by pur- taxes, law. the as the announcement that made good default mer- Court ordered that the and the chaser would receive aside, long relying judgment title, as on set and as be and that chantable Sr., Fitzgerald, prop- defendant, representation the David A. he bid in the pay erty. current taxes that fur- the title is not the that He asserts stating stayed. title, good ther be merchantable and Attorney Prosecuting by Thereafter, the the land was devised that the reinstating Fitzgerald, Daly an order the for- A. moved for to David of Patrick during Sr., of his for the reason that Da- the term mer and for yid failed, pay Fitzgerald, his has heirs of Sr. A. his death and at payable 20, body, issue— June of failure of taxes due and in case and thereupon tes- ordered sisters of the The Court the and to the brothers staying former order of the Court tator. vacated, plain- represented and A. Fitz- that David execution is It living proceed son, A. gerald, Sr., David tiff ordered to with has a daughters, living Fitzgerald, Jr., and two sale. daughters Fitzgerald, Jr., Thereupon, of said David A. each and that he, been representing not to- who have filed a motion minor children has they gether living sisters, neces- are parties, are the and that with two made Fitzgerald, Sr., sary reason parties, and and that children of David A. they petition made not land described in the fact Daley jurisdiction order the will of Patrick had was devised Court Fitzgerald, Baber and as a life estate David A. the sale contempt be Sr., the heirs of prays and at his death to citation body, he has dismissed, amount his in case of the failure of Fitzgerald, refunded. paid said Sheriff be issue of the David A. 1939, 8, on con- on March then to his and sisters. Court brothers represented sidering A. Fitz- of David further that at motion is chil- time, gerald, Jr., the minor the sisters of found that each of David A. Fitzgerald, Jr., suggested as neces- motion had minor children in said dren alleged necessary parties sary parties, are the are Sr.; such, their in- made and he have not been moves David contingent parties, the minor children be made remote is terest mothers, surviving sale, January 28, and that their and that set their grand- 1939, necessary predecease postponed their until said their mothers each father; the interest are made defendant and have respective moth- opportunty protect their had an defendant, rights. are ers who children minor thereof said The Sheriff offered the land for sale -reason necessary mo- parties; day January, on the 28th hot Prosecuting which time Sam for the overruled. C. Baber bid tion was. $10,957.50, Attorney answer the sum of demurred same and the Baber, on the contempt C. land was sold to him. filed Sam Thereafter, application ground consti- do not was made the facts against Sheriff a citation tute a defense. 15, 1939, ordering August Sam C. Baber him to show The Court on why punished cause he demurrer should not be consideration
6or question, assume that Prosecuting Attorney we will this overrules finding in con- Treasurer, S. C. Baber plaintiff, same, order tempt asking further, final order as plead proceeding, guilty special is the con- finds that Baber has ap- tempt proceeding, charged, it contempt or- pealable. dered that he be It would dismissed. doubt, postion overruling some take this seem that this demurrer position that neither for the reason Court reversed former question, seem to and all when on March 1939 he overruled the raised the appeal Jr., from the order assume that motion and held that gives necessary contempt this the minor children were not overruling right ques- parties. the real court to review Prosecutor’s demurrer, he did tion infants so because he to whether then parties. Thereupon, plaintiff gave notice Daley stated, Patrick As heretofore *3 appeal Appeals to the Court of from Fitzgerald, devised the land to David A. rendered the Court Sr., for and then to the heirs of August 15, on 1939 'in the matter of the body, failure of issue his and case of application contempt, for citation for Fitzgerald, Sr., the said David A. appeal being questions said of law. then his brothers and sisters. Through appeal this from the order beginning action, At the of the David finding of the Court that Baber is not Fitzgerald, Sr., children, had three contempt for the reason that had minor chil- two whom grand- title was defective because the The children of dren. three David A. children were not made defend- Fitzgerald, brothers ant, and, there was no mer- sisters were made but title, chantable the review this Court grandchildren were not. sought to determine whether or not The estate devised the will of Pat- grandchildren necessary par- Daley vesting rick is an estate tail ties. Fitzgerald, Sr., as David A. the first question The at once occurs as to „he tail, donee in estate of inheri- sought whether or not the order to be body, tance to vest the heirs of his reviewed is effecting a final order a Fitzgerald, Evelyn Fitzgerald David right determining substantial in effect upon Madeline his death. preventing action judgment. The terms reversion of the will appeal There any is no from order of devised brothers and sisters refusing to make the infants Fitzgerald constituting of David A. defendants, nor has there contingent estate. holding final order infants Prosecuting Attorney The formulates necessary parties, except so far as questions two as determinative of the finding such a is inferred from the re- (1) question now before Court. does fusal of the purchaser Court to hold the an action to foreclose a tax lien under contempt, statutory provisions of Ohio work Aug. 5, 1939, Court filed wherein he held piece a disen tailment of an entailed minor children were (2) real estate? an When brought to foreclose a tax lien attach- However, provides §12222-2 to an entailed are the chil- final effecting order is an order a sub- dren of the issue of the first donee right stantial special pro- made in necessary parties? ceeding, summary applica- tion in judgment. question an proposed may action after It first be appears also procedure simply the same more stated as follows: contempt accept for failure to title was action to foreclose lien es- a tax what pursued conveyed by Wolf, tate is Schneider Sheriff’s deed 120 Oh definitely passing upon pursuance' St 525. Without made in of the statute? Ó02 list, Counsel for Baber states the matter lands described (1) taxes, charged prior for our determination as follows: amount of grandchildren delivery list, Are the with interest. Br., who were in the com- provided is further the tax- necessary par- mencement of the action paid es have not been three con- (2) Are ties? unborn years the state shall secutive have Fitzgerald by making their right proceed- to institute foreclosure (3) parties? parents type Does this ings provided in the same manner convey simple sale a fee title to the Chapter. of Fitz- provides 5718-3, GC, it shall Sec. gerald, Sr.? duty attorney prosecuting be the Counsel filed have most elaborate proceeding to institute the name questions touching upon all briefs Treasurer to foreclose the lien as well as some that involved do nine of the state within months after really us, seem to be before publication list, unless subject theses written on the of en- paid. taxes have been contingent tailed estates and remaind- such foreclosure shall be instituted appreciate the efforts of ers. While we prosecuted in the same manner counsel, must, in the interest for the foreclosure of law brevity, confine our examina- excep- mortgages, with certain stated question tion of the to narrower limits. tions. first We will consider finding provides 5719, GC, that a Sec. conveyed upon to the estate that of the amount of such shall be entered touching only of a tax foreclosure due and un- as shall found taxes briefly upon pertinent statutes paid, order and the court pass com- decisions. We over without pro- premises sold and from the urged points ment some of the coun- paid, ceedings first the costs shall sel. *4 accruing of taxes af- next the amount provides GC, 5671, that the lien Sec. finding, entry and the the ter (cid:127)of the to all state for taxes shall attach any, balance, distributed ac- if shall be taxes, property subject to such cording to law. until such which lien shall continue 5762, GC, Lands in the Forfeited Sec. accruing taxes, any penalty there- with provides Chapter, the on that auditor paid. charged on a Taxes shall be give pur- making to the a sale shall property person lien the on real of certifiate, upon of and return chaser charged from the date of therewith payment of the certificate filing the of the notice of such lien. purchas- charges to such shall execute provides 5680, GC, Sec. each deed, assigns, er, which his heirs and person pay shall taxes for the lands of prima of facie evidence deed shall be life, which he is seized for or in dower. purchaser, his heirs or as- title the any provides 5688, GC, if Sec. signs. person, seized of lands dower or for plain- neglects suggested pay counsel to the taxes so that is Chapter language payment in the no lands are sold for tiff referring Delinquent thereof, year mentions Lands and within one after such them, according disposition has an estate which
sale of does not redeem law, person entailed, involved he and which shall forfeit been and, estates, lesser next entitled to such lands in remaind- life estate or other authority er, therefore, is to be all the estate which he has in such suggesting lands, of the ti- the nature and the remainderman or re- found may conveyed by or auditor’s versioner the sheriff’s redeem the lands in like tle deed, es- manner an as other lands are when the actual redeemed. Chapter Delinquent upon In first donee Lands tate which —§5713, de- has allowed the taxes to become state linquent. shall have a first and best lien on the
603 Devore, v 8 Oh In the case Jones however, We, are of the is held that a valid sale 430, it we have provisions Sections St non-pay enougn auditor for the lands to are broad alluded above pre-existing taxes bars all delinquent lands ment govern sale of dower, perfect. rights pay inchoate or failed life tenant has where make the does not deed The act 5888 are and §§-5880 the taxes prima facie evidence of a valid present auditor applicable case. it, been be shown to have title unless to be determined The given authority taxing pursuance conveyed by estate is what by law. has where life tenant officials says substance, J., p. 431, taxing Scott, pay taxes, at failed sale of for the lien for that all the seek to foreclose the officials non-payment delinquent of taxes are a land for taxes. There such They op- personam. rem, which of decisions in Ohio number all, upon itself, judg erate, briefly note, the land our at shall which in merely upon per- light question. upon the title of the throw this ment Douglas name it Dangerfield, case of son whose In the v 522, states, page under listed taxation. The statute at 14 R. Court O. provides examination deed 529: grantee shall the auditor vest good title, upon and in tax valid both law “The attaches land * * Judge upon person equity. states —“A tax rather than valid V’ therefore, extinguishes prev- title, legal equitable, titles, Gwynne case Niswanger, ious inchoate v 20 purchaser Reports perfect; 55G, upon takes the Ohio comments discharged premises effect, provides previous then in from all which the auditor liens incumbrances whatsoever. execute to the purchaser itself, deed, upon The tax is assessed deed shall land convey good it; paramount and valid and is a lien title to the payment only by land and states can the effect its be enforced it specific property cannot contended the sale deed taxed. persons having any made under the law then All under exam convey must, complete Legal ination will premises, see to the power payment if the state has the taxes own make peril.” title. The deed shall one con veying property absolutely, Lindsey, with the case of 47 Clark v Oh quotes out reservation approval condition. The Court page 564, further substance, Devore, supra. states on Jones v In the case sale, pro Root, if the Trust Co. Si Oh ceedings substantially correct, virtue of Revised *5 complete legal title, a Statutes, and does not re lien of the the state taxes quire chancery. the aid of paramount liens, a court of A is to all other and that very tax title from its nature has noth that lien is transferred to the ing previous do to with sale, chain of ti at a and is tax not affected the tle; any way does not in connect it fact that the time of sale the self breaking up with it. It pending of all suit in was foreclosure. previous party holding titles. page 537, such The Court states on the title, proving it, goes in paramount no further a lien taxes were to all deed; than tax the former title can liens and claims other when fore- the be or no preju service to him nor can was the closure suit commenced. It was regularly dice him. If duty plaintiff the land be sold of the' to take notice taxes, property, accompanied the govern the itself tax legal title, goes purchaser, accordingly. having to the Not so it done many estates, legal must, negligent parties, no matter how other abide like equitable, may be connected the See L. with it. result. 33 R. A. 689. 604 special that the the children toe observed statutes tate —are issue necessary parties?
which under examination in the first donee in tail were the questions cases, provide defi- for Baber states the several above cited Counsel nitely grandchildren con- Are that the auditor’s deed shall as follows: the vey land, Fitzgerald, Sr., good who A. were valid David title grantee good, being commencement of the ac- and vest in the a title at the necessary equity. parties, in law and in unborn both tion by making grandchildren present comparable GC, to §5671 parties? §2838 S., parents R. and the other sections their supporting der cited examination the above The Court below in his rul grandchildren cases, provision that were that the neces definite sary parties, the deed shall in the in effect auditor’s vest stated the title, grantee good covering and valid but sim- lien tax foreclosures statutes statutory ply the lien of the state dis states there is no indicate prop- parties, pensation for taxes attach to all real to shall as erty, Wolf, shall continue until such case under the Schneider any cases, paid. taxes are have not found all and other cited Oh provision statutory being as the effect of to interest who have property deed in con- the sheriff’s auditor’s made must be veying comparable title to the former The trial court was of Fitzger as statutes 2838 R. S. of David opinion, however, Sr., ald, We are of the esse at the time who were in action, present the omission from commencement parties, the definite declaration as to the es- conveyed representation tate in the for- as of virtual doctrine through statutes, leg- applicable mer does indicate to them parents. islative intent the auditor’s deed convey relied less than the entire fee. as the Court Inasmuch case, There is no doubt the remainder- it will be well Schneider proceed men further. could have saved their it before we examine by paying delinquent reciting facts, Court states: After taxes, dispossesed the and could have pur delinquent duly life tenant his life es- commenced “An action (See GC). 11935, inclusive, §§11925, tate. suant GC We, par property, arrive at the conclu distentail Baber, pur being sion C. he that S. when who ties property property chased sale, Sheriff’s secured a class devisees None of the action. simple estate, were then fee even will as unborn named unnecessary though Held, being. tax it was which was fore closed, par non-pay was the result devisees these unborn name to. brought ment to disentail of taxes David A. the action ties property.” life as the pur first donee in tail. Therefore chaser the Sheriff’s sale cannot set from this seem It would up contempt pro this it was question defense was whether ceedings he did named not secure a mer the devisees to make unborn, parties defend- chantable to the fee of ant, estate. held that it was Court unnecessary We come now to them as second name presented brought express- the record which is to disentail plaintiff ed property. counsel for case under a second this last was be- While *6 proposition following question. partition, gun in the in the ne- an action brought cessary parties When de- an action is been to foreclose seem to have attaching considering by pro- a tax lien it as an entailed es- a termined
605
GC, is ex-
§11926
noted that
It will be
GC,
ceeding
§11925,
to disentail
under
requirements
searching
ceedingly
in its
property.
defendant,
and it
proper
opin-
delivering
Kinkade,
Judge
an action
may
in such
held that
531,
be
page
well
on
remarks
of the Court
ion
in
the first donee
of
important
re-
that all
it
is
that while
necessary parties,
think
but we
disentailing
quirements
statute
of the
short of deter-
cited falls
last
the case
with,
complied
mater-
cannot be
it
be
par-
mining
done
in a
ial whether
that be
statutory proceeding such as
in
ties
proceedings
separate
in
mentioned
bar,
not seek disen-
does
which
disentailing
that at
statute,
these
or whether
complied
tailment.
in
some
be
Fleming,
pro-
In the case
Bennett v
form of action such as a
other
in the
in
it is held
substance
ceeding
partition,
any
in
other
Oh
or
form
having
syllabus
persons
a
involving
second
of action
the title to real es-
by
realty are bound
sought
in
quiet
remote
tate,
in
it
is
an action
rendered
in
title.
although
covering
property,
If
examine
the sections there un-
suit,
if the holder
parties,
der consideration
as to
we find
party.
estate is a
Estates
provision
the first
GC,
in
is
§11925
sub-
being
rep-
persons
by
stantially
limited to
as follows:
In an action
living
by
resented
owner
tail,
tenant
or for
or
inheritance,
grantee
so that
qualified
first estate
or devisee of a
or
the first hold-
any
quali-
decree in a suit in which
fee,
conditional
or of
other
er,
person,
is made a
estate,
fied or
determinable
rights
re-
person
claiming
of afterborn
tenant,
conclude
under
such
grantee
may
devisee,
maindermen.
the Court
au-
however,
holding,
criticized
This
was
thorize
sale
estate whether
stated,
case,
is
Schneider
where it
it be
created
will or came
de-
page 530,
is
scént when satisfied that
the sale would
paragraph
person
the second
for the
be
benefit of the
hold-
Fleming
syllabus
principle
Bennett
and do no sub-
enough
injury
fourth son
to include the
stantial
broad
to the heirs
in tail or
representative
expectancy,
this case.
succession,
other
as a virtual
rever-
unnecessary
finding
sion,
in that
“Such
was
or remainder.
provides
GC,
ease for the reason that
member
Sec. 11926
in substance
was,
petition
the class of unborn
devisees
shall contain
a de-
court,
para-
scription
fact,
the second
sold,
before
estate to be
graph
syllabus should,
persons
who are in-
terested
modified and limited to the facts
the estate
the terms of
will,
instrument,
that case.”
deed or other
brief,
creating
plaintiff,
Counsel
en bailment of other estate
page
thereafter,
may
in the Court
states “that while
become
represen-
heirs,
reversioner,
therein
below the doctrine
virtual
or oth-
erwise,
it
tation
and discussed
was briefed
be made
that,
acknowledged
the doctrine
action.
now
everywhere
representation
The case at
been
bar
ne-
a rule of
der the
the courts
to foreclose a tax
convenience,
cessity
possible
and has
and while
and not of
have been
person
proper pleadings
applied
who was
where the
under
been
to secure a dis-
being,
represented
provided by
was
entailment
of the estate as
seemingly
Court
for the
it was
sanctioned
by per-
case,
to hold that he was
the Schneider
no such at-
duty
being,
tempt
whose
made,
sons who were in
and no
alle-
gations
defense which
supported
it was to
the same
make
that would have
person
made had the
appear
petition.
could
*7
óoó
* *
being,
been in
and counsel
seems
to
land
this state
It shall be
repre-
sufficient, having
abandon the doctrine
of virtual
made
suit,
sentation.
for
treasurer
to make
allegations,
prayer
Counsel for Baber concurs in a state
certain
of
and
rep
petition
ment
of
doctrine
virtual
shall be that
the court
necessity
property
resentation
doctrine
of
make an order
be
help
pro-
invoked to
the alienation
of land
sold
vided-by
the sheriff “in the manner
by allowing
rep
a member of a
class
law for the sale of real estate
class,
resent unborn
of
members
It seems to us that
execution”.
compliance
or where there are no members of class
in refer-
with the statutes
predecessors
ordinary
proceedings
in esse to allow the
in ti
ence
(cid:127)
represent
mortgages,
tle to
the unborn
is sufficient.
members
foreclosure of
He, however,
provides
any per-
of that class.
asserts that
Sec. 11255 GC
parent
represent
may
cannot
his unborn
has
made a defendant who
son
be
rep
children
virtue of
in the controver-
claims an interest
an,
resentation,
we,
plaintiff
sy
which
or who is
adverse to
investigation,
complete
party
from
find
de-
correct,
being
ques-
to be
their
of the
or settlement
termination
not
interests
identical.
therein.
tion involved
statute,
We are driven to the
do not comment
conclusion that
A
which we
grandchildren
applicability
§10512-8,
if the
in esse
or unborn
its
substance,
necessary
provides,
were
which
such,
property
and
not
in real
made
interest
no
all,
vest,
they
good
could
must
not be con
unless it
twenty-one
years
after
sidered to have been
virtue
than
later
given
being.
parent
All estates
of the fact
was made
or lives
life
they
lands shall
will in
If
defendant.
were neces
deed
simple to
sary
in fee
parties,
estate
those in
remain an
should have
and
See
they
tail.
donee
served,
the first
been made such and
issue of
would
§10512-4
have
the unborn
GC.
also
already
stated
but
is, therefore,
members of their
class.
has
As
reference,
ready
repeated
to determine
here
whether
these
grandchildren
devised
parties.
Daley
A.
they
to David
were,
If
Patrick
were not
such
the
Fitzgerald,
during the term
Sr.,
through
either
for and
actual
service or
death
at his
and,
representation,
virtual
his natural
body,
in case
the Court would
heirs of
not have had author
ity
foreclosing
to David
to render
issue
failure
sisters
brothers
Sr.,
and it
would
then to
follow that-
acquired
the Sheriff’s sale was
the testator.
liv-
is still
merchantable,
David A.
Baber was
Jr.,
David,
living son,
contempt.
We
examine
and has
must
of said
closely
daughters,
each
provisions
living
of the
statute
two
daughters
children
minor
has
reference
to the foreclosure
the lien
delinquent
are not made
taxes.
in-
provides
The chance
Sec. 5718-3
it shall be
pres-
They
heriting
no
duty
prosecuting
attorney
is remote.
institute
interest.
the name of
ent
418, §36, states:
treasurer
foreclose
the lien
16 O. Jur.
state,
prosecute
and to
the same
rule
judgment.
established
final
“The
“It
a well
modifying
shall be
Ohio
foreclosure
instituted
der
relating
prosecuted
law
principles
common
in the same manner
tail,
donee
is now
the issue
or hereafter
to estates
during
mortgages
of such donee
law for
the life
in tail
foreclosure
opinion, 83 Oh
Affirmed without
465.
in the lands
interest
estate or
no
alienate.
he can
entailed
during his
in tail
the donee
issue
had
authorities
Laver
these
presump-r
“Under
apparent or
heirs
life
he could
in the lands that
possibility
title is the bare
Their
tive.
comment
cite without
becoming
alienate.”
eventual-
chance of
or mere
*8
passed
cited
the above
after
tail;
for,
is
§10512-4
ly
the maxim
heir
decided,
historical
were
cases
And it is a
est haeres viventis”.
nemo
resume of tax sales
possibility
For a
statement.
a mere
rule that
well settled
Inc.,
conveyed;
Titles
see The
statutes
Columbus
released
or
cannot
12,
Thatcher,
et,
Decem
supposes
being
L. R. Vol.
O.
release
v
reason
ber,
being.
Therefore,
quit
right
given us consider
matter
has
This
of a
executed
the issue
claim deed
concern,
at
arrived
during
but
have
able
life cannot
donee
in tail
the-
convey
grantor
the conclusion
if the
the estate even
grandchildren
no
had
subsequently
becomes
with the
invested
present
words,
quit
interest
In other
estate.
claim
estate,
and,
passes
deed
no
which was not
estate
simple
parties;
fee
possessed by
then
conveyed
by Sheriff’s
could be
Baber,
subject
purchaser,
deed to the
Dungan Kline, et,
In the case of
v
right
redemption.
opinion by Crew, J.,
p.
81 Oh St
It follows that
the answer of Baber
Court,
stating
after
that a re
not a sufficient defense to
the ci-
primary
lease is considered as á
con
contempt,
tation
veyance,
says:
“But
if he
overruling
Court erred in
the demur-
right, nothing passes, not even a chose
Prosecuting Attorney
rer of the
to his
then,
in action. What
had the
answer.
tail, during
issue of the first donee in
*
*
Judgment
*
re-
below
My
his life?
answer
is none.
versed
case remanded.
apparent
Such issue is
an heir
presumptive.
pos
His title is the bare
BARNES, J., concurs.
sibility,
chance,
becoming-
or mere
HORNBECK, PJ., dissents.
tually
tail;
even
heirs
is,
maxim
‘nemo est haeres
viventis’.
And it
rule,
well settled
HORNBECK, PJ. Dissents:
possibility
mere
can not be released or
proposition
I dissent
from the
conveyed;
is,
and the reason thereof
grandchildren
of David
supposes
right
a release
in be
are not
ing.”
to this
proceeding.
Plaintiff’s
counsel
con-
In the case of
Kreiter,
Laver v
7 Oh
majority
cedes and the
holds that
Ap 441,
stated,
certain
facts are
grandchildren
cannon be bound
p.
court
states on
444:
theory
representation,
of virtual
say
but
interest
is so remote that
“The
estates
created
the will of
necessary parties.
These
Philip
legal
Laver are in
effect entailed
grandchildren may take an interest
estates, giving to the first
takers an es-
the land under
consideration.
Their
only,
tate for life
and to the issue of
prospective
contingent.
is
takers,
the first
or to the heirs of their
So is the interest of the children of Da-
bodies,
simple.”
an estate in fee
They may
vid
Sr.
dependent upon
take
their survival
Citing: Dungan
Kline, et,
81 Oh
grandchildren
of their
father.
St 371.
“persons
are interested
who
Dart,
Dart v
6o8 heirs, reversioners, therein as other children the first donee predeceased and “shall be made wise” had her. et, the action”. This Fleming, section GC. Bennett v 105 Oh specifically requisite relates page al the will of James Bennett legations petition provided in an action estate de real daughter. Mary Fleming sell entailed real estate. Should not vised to his E. provisions proper parties as to its observed, to the heirs of her remainder action, body in the instant the re further pass prospective Fleming Mary sult of which all die E. should without surviving issue, interests estate should real remaining pass thereof two testator’s thereby accomplishing, children, George as the ma Bennett John P. jority properly held, during equally Bennett, all their natural ' contemplated §§11925, lives, sale under their children. with remainder o' Fleming, George seq. Mary et and. Bennett E. of the chil- Bennett were all John P. very Bennett, important “While it At the testator. of James dren requirements disentailing in- the time that *9 complied surely Fleming with, by Mary statute be it under can- E. stituted George seq., not material whether Bennett and that be done §§11925 et only George separate proceeding living. in the men- Bennett were John P. (cid:127) Frank, disentailing son, tioned in the statutes minor had one Bennett (§11925 daughter, seq.), pro- Matilda. et or whether these a minor and John daughter complied Bennett, visions plaintiff, with in such other Helen The action, proceeding John, form of such as a in born until after was not of partition, completed. All fully an in action foreclosure of were mortgage, living men- other form of heretofore action Bennetts of the involving parties min- title to real in made tioned were sought quiet by guardians litem. which it is ad the title of ors answered part against parties in therein as Bennett Helen of The claim entailing provision expectancy was an in a found last in her interest was that coving property.” by of protected will testament the decree properly not Obviously not it was disentailment. requisite parties made The would be contemplated test as un she that they because §11926 §11926 der of party is not that GC virtue GC. etc., being” present only persons “in hold a as requires vested interest were it questions Further, presented Dungan Helen in v as named to be clearly v/as Kline, Matilda, et, sister, and Laver who 81 Oh St 371 v had a she, Kreiter, Ap Helen and as 7 Oh class same in the represented. Dungan virtually therefore, If the as law announced was upon al, then, court, passing Kline v et as to control proper parties Hel- properly determined question this case then the proper neces- children of David not a was en Bennett by her necessary parties during represented sary party not because was court, party. lifetime his children no hold who was sister Dungan second go in the however, too far could v alienate. did syllabus it Kline, al., supports wherein et proposition conclusion remote, having persons David Fitz is said gerald, Sr., expectant prospective interest contingent have a interest * * * Daley realty under will Patrick because are bound although, property, recognized concerning it was there the sur suit, viving grandchildren if the holder parties of the donee in made is a inheritance tail held title to shares first estate the lands against v in Schneider it modified as those who claimed through pointed supra. out Wolf, fathers, The court deeds made
609 opinion. appear from Fleming Bennett v member the case of that while then held We class of unborn devisees was Wolf, indi Oh St v fact before the court Schneider parties Helen, who cated class same was bound action, representa disentailment in a the doctrine of virtual in the raised Fleming was not matter tion. Bennett now v affords tax support of a lien sell on foreclosure claim that Helen Ben living nett, there stated— when the suit was in stituted would have been neces sary party. un- “The case at bar Wolf, to foreclose a tax der the statute Schneider may possible partition while been have real estate sold in asserted proper pleadings to secure a dis- the title was not under merchantable “parties the estate as because entailment were not seemingly forming GC, and sanctioned in court a class of devisees case, attempt Schneider named in no such a last will and testament allegations made, property a former owner of was and no as the supported unborn children of one would have an ac- the devisees holding appear petition.” a life tion estate under the will”. Judge page Kinkade 528 of the requirement regarded, marks The action was not so plead as those one which “it who are in be- sought quiet parties in- and not those may therein, against unborn acquire who terested entail- an thereafter ing' provision property. found in a last will and The court ' expressly covering property.” found that all testament inter- anything may ested and do not feel that gained by re-hearing action. This case this mat- is no author- ity ter, questions persons the claim heretofore considered, passed realty take an and we think estate in *10 upon. der a necessary parties will are not an action under trust seq., the matter §§11925 of suffi- et to sell engage such real cient estate. the attention Supreme should be Court. affirmed. Applicaion rehearing dismissed. BARNES, JJ., GEIGER APPLICATION FOR concur. REHEARING PJ., HORNBECK, dissents. No. 143. Decided Dec. 1939. BY THE COURT: This matter is before ap- us on the
plication rehearing. McLAUGHLIN v RAWN We have re-read the court’s hearing, Appeals, Dist, former Ohio 2nd and have Franklin care- Co. fully studied the brief of counsel. apparent No. there 3113. Decided Dec. ser- questions involved, ious inasmuch dissenting opinion. there was a We do not find pre- the brief sents new matter. The disentailment in such an action passed were considered