Ohio Courts of Appeals Reports.

(Cited O. C. A.)

Volume XXVIII.

Causes Argued and Determined in the Courts of Appeals of Ohio.

ACTION BY EXECUTORS FOR DETERMINATION OF
BENEFICIARIES.

Court of Appeals for Lucas County.

THE OHIO SAVINGS BANK & TRUST COMPANY ET AL, AS EXECUTORS, V. JASON D. CLARK ET AL.*

Decided, January 15, 1916.

Wills-When Executors May Maintain Actions to Construe-Actions to Construe Are Actions in Chancery-Codicil Held to Speak as of the Date of the Testator's Death—Disposition of Stock Dividends Paid to Executors-Delivery of Estate to Widow to Hold for Life— Rights of Remaindermen.

1. Executors may maintain an action by virtue of the provisions of Section 10857, General Code, to obtain a construction of a will where the estates devised are uncertain, the classes of beneficiaries in doubt, and the duty of the executors to pay a collateral inheritance tax in controversy.

*Motion to direct the Court of Appeals to certify its record in this case overruled by the Supreme Court, May 26, 1916.

Ohio Savings Bank v. Clark et al.

[28 O.C.A.

2. An action to construe a will is one in chancery and appeal lies from a decree of the court of common pleas in such case.

3. Jos. L. Wolcott executed a will in 1891, devising all his estate to his widow except a bequest of $5,000. In 1899, he executed a codicil in which by apt words he gave his widow all of his property for the term of her life. The codicil contains in addition, the following provision: "At the death of my said wife all of said property as aforesaid I give and devise absolutely to the heirs of my mother Caroline B. Cromack the same to go to said heirs per stirpes." The testator died in 1900, and his mother in 1884. The testator left surviving him, his widow, who elected to take under the will, but no lineal descendant. His mother left surviving her, a brother and sister, both of whom died in 1885, and the descendants of six other brothers and sisters, and also her second husband Joseph C. Cromack, who died before the testator. Held: That the codicil speaks as of the date of testator's death, and the devise therein to the heirs of his mother means those who were such at his death, and such devise did not lapse nor did the testator die intestate as to any portion of his estate, but his widow takes an estate for her life with remainder to the descendants of his mother's brothers and sisters per stirpes.

4. Dividends remaining in the hands of the executors, paid to them on stock owned by the testator, pass to his widow, whether paid in cash or stock, provided that the actual value of the stock at the time of testator's death be not depleted by stock dividends.

5. It is the duty of the executors to deliver the entire estate to the widow on the settlement of their final accounts, without security from her, in the absence of evidence showing that the rights of the remaindermen will be imperiled thereby.

Tracy, Chapman & Welles, for plaintiffs and defendant,` Mary Louise Wolcott.

Brown, Geddes, Schmettau & Williams, Smith, Baker, Effler, & Allen, Brown, Hahn & Sanger, Fritsche, Kruse & Winchester, Geer & Lane, R. W. Kirkley, Pierce J. Phelan, O. B. Snider, A. Van Wagenen, George B. Cole, Kirkbride & McCabe, D. B. Richards and C. L. Wilson, for other defendants.

RICHARDS, J.

Appeal from the court of common pleas.

This action is brought by the executors for the purpose of obtaining the direction and judgment of the court as to the true construction of the will of Joseph L. Wolcott, deceased.

There are in the case a very large number of defendants and they include all persons who are, or claim to be, beneficiaries under the will and codicil. On the trial of the action in the court of common pleas a decree was rendered, adjudging that the beneficiaries under the codicil were the brothers and sisters of the mother of the testator, and the descendants of such brothers and sisters. From this decree an appeal was taken by the plaintiffs and by Mary L. Wolcott, the widow. The controlling facts are not in dispute, but before proceeding to the merits of the case, it is proper to dispose of some preliminary questions raised by counsel.

Certain of the defendants contend that the executors are not authorized by law to bring an action for the purpose of obtaining a construction of this will and the codicils thereto, and that the action is prematurely brought. They insist that such action can not be maintained during the lifetime of the widow of Joseph L. Wolcott. The record shows that the debts of the estate have been fully paid and that the executors have on hand and under their control a large estate, consisting of non-ancestral property and aggregating probably more than half a million dollars, and that it is necessary for the court to fix and adjudge the true construction to be placed on this will before the executors can properly conclude the administration of the trust reposed in them and make distribution of the estate, and no sufficient reason is perceived why this adjudication can not be had during the lifetime of the widow. Furthermore, the widow contends that she is entitled to the estate in fee, while other defendants claim interests therein. If her claim prevails, no duty to pay a collateral inheritance tax under G. C., Section 5331, is imposed on the executors; while if the claims asserted by other defendants should prevail, then such duty rests on them. We hold that the action is maintainable alike under Section 10857, General Code, and under the general principles of equity jurisprudence.

It is further insisted that the action is one which can not be appealed to this court. Long before the passage of the original statute now known as Section 10857, General Code, courts of chancery were called on to, and did, adjudicate cases for