1886. Various errors are assigned, upon which a reversal of the decree is

asked.

The appellees, on the second day of September, 1886, by a verified special answer in bar to the errors assigned, allege that, after the judgment and decree were rendered in the court below, to-wit, on the thirty-first day of December, 1885, the appellant caused a copy of the decree and order of sale to be issued out of the office of the clerk of the circuit court of Hamilton county, and placed the same in the hands of the sheriff, who proceeded to advertise and sell two of the tracts of land embraced in the decree. It is averred that at such sale, which is alleged to have occurred on the twenty-third day of January, 1886, the appellant became the purchaser of both of the tracts of land, so sold under the decree, for the sum of $1,050, the proceeds of which it is charged she received before prosecuting this appeal. A certified copy of the decree and order of sale, with the sheriff's return thereon, establish the truth of the matter alleged in the answer filed. It thus appears that, after electing to use the alleged erroneous judgment and decree of the court in selling two tracts of the land therein described, the appellant is prosecuting an appeal to this court seeking a reversal of the decree as to the other tract. This cannot be done. The case falls fairly within the ruling in Clark v. Wright, 67 Ind. 224, and the later case of Baltimore, etc., Co. v. Johnson, 84 Ind. 420, and the authorities there cited: "A party cannot accept the benefit of an adjudication, and yet allege it to be erroneous.

It does not alter the case that there was no controversy respecting the several tracts upon which the decree was given in appellant's favor. The appeal was, and must of necessity have been, from the whole decree as given. Having availed herself of so much of the decree as was favorable to her, both the statute (section 632) and the common law affirmed that an appeal is thereafter denied to the appellant. Any other rule might result in bringing about embarrassing complications and manifest injustice to the appellees, in case a reversal of the decree should result. The decree appealed from, and which was in force when the land was sold, having exempted the lands claimed by the appellees from the lien of the mortgage, they may not have deemed it of any importance to them to see that the other two tracts sold for a sum sufficient to pay the appellant's debt, or for the best price which might have been obtained. The appellant may have thereby secured a bargain in the purchase. If she may now hold on to what she has thus acquired, and yet reverse the judgment so far as it is unfavorable to her, the appellees will not be in the same situation they would have occupied in case the reversal. had been secured before the sale of the other tracts.

When the decree appealed from was rendered, the appellant had the election either to appeal, or to adopt the decree as it was, and avail herself of its benefits. Having decisively elected to pursue the latter course, she must now be confined exclusively to the course first adopted. Every consideration leads to the conclusion that the appeal cannot now be maintained. It is therefore dismissed, at the appellant's costs.

(44 Ohio St. 530)

CASSIDY and others v. HYNTON and others.

(Supreme Court of Ohio. December 7, 1886.)

WILL-CONSTRUCTION OF-WIDOW AND CHILDREN-TRUSTS.

Where a testator bequeathed and devised his estate in these words: "I bequeath to my beloved wife, E., all my property, real and personal, to be solely under her care and management, in trust for the benefit of mine and her children. She may distribute it at any time, and in any manner, that she may think proper." The will was admitted to probate, and E. elected to take under its provisions: Held, (1) that E. takes the entire legal estate; that she is entitled to the use of the property for her own benefit, and is legally responsible only for the original amount, the principal; (2) that the children are entitled to equal benefits in the distribution of the devised estate; and, (3) it appearing that the property is being disposed of in a manner inconsistent with the execution of the trust, the widow will be required to make a showing regarding the property, and to give bond, failing to do which, a trustee will be appointed by the court. MINSHALL, J., dissents.

Error to district court, Cuyahoga county.

The question in this case is as to the sufficiency of plaintiffs' amended petition. Without copying the pleading at length, its substance may be stated. On the twenty-first day of September, 1865, John Hynton, a resident of Cuyahoga county, was the owner of a parcel of 134 acres of land in that county, worth $10,000, and 147 acres in Summit county, worth $9,000; also, stock, farming utensils, and money at interest, of the value of $5,000. Elizabeth Hynton, the defendant, was then his wife, and they then had four children living, viz.: Mary, aged about 21 years; Catherine, about 18; John, 16; and Elizabeth, 13 years. On that day John Hynton made a will, which is as fol lows: "Know all men by these presents, that I, John Hynton, of the township of Independence, county of Cuyahoga, and state of Ohio, being of sound mind and memory, and not under any restraint, do hereby declare and establish this my last will and testament: I bequeath to my beloved wife, Elizabeth, all my property, real and personal, to be solely under her care and management, in trust for the benefit of mine and her children. She may distribute it at any time, and in any manner, that she may think proper. Elizabeth Cassidy and Catherine Walsh, plaintiffs, and Mary Doubler and John Hynton, defendants, are the children named above.

On the twenty-fifth of September, 1865, the testator died, leaving the wife and children named, all of whom still survive. The will having been duly proven, the widow appeared in probate court, and elected to take under the will. She was at the same time appointed administratrix with the will annexed, and gave bond as such in the sum of $1,000. No inventory of personal property was taken, nor appraisal had, nor report of any sale. On the nineteenth of October, 1886, she filed in probate court a sworn statement, alleging the payment of all debts, which the court received as a final settlement. No other settlement was ever made.

Immediately after the death of John Hynton she took possession of all the property, and took, received, and kept all the rents, income, and profits, and has continued to do so, except as hereinafter stated, and claims all as her own absolutely. November 18, 1870, she sold and converted into money about $5,000 worth of the personal property; and with the proceeds, and with income and proceeds of about eight acres of timber land sold, purchased 95.34 acres of land, worth $6,197.10, which sum she paid for it. She has distributed, out of the estate, to said Elizabeth, $530; to said Catherine, $500; and to said Mary, $2,000. To said John she conveyed, without consideration in money, or otherwise, 114.96 acres of the real estate, and John conveyed it to the defendant Richey, who still occupies it. The land was worth $6,322.80. Afterwards, without valuable consideration, she conveyed to said John another tract of the land worth $6,175. The total value of all the property left v.9N.E.no.2-9

by the testator was about $24,000. The debts, funeral expenses, and cost of administration did not exceed $1,000.

The said Elizabeth Hynton claims to be sole devisee and legatee of all the property; denies that she holds any part thereof in trust; refuses to give bond for the proper discharge of the trust; has not accounted in any way for her management of the trust property; and still refuses to account. At the time of said conveyance to said John, and by him to said Richey, both of them well knew all the terms and provisions of the will, and that said lands were held by said widow in trust only.

Plaintiffs pray a construction of the will; that the defendant be ordered to render full account; that she be required to give bond; that proper order be made regarding the lands conveyed to John, and the lands by him conveyed to Richey; for order that will secure preservation and ultimate distribution in equal shares of the trust property; and for full relief.

The petition was filed May 26, 1877. At the September term, 1881, of the common pleas, the case was heard, and a decree rendered for the plaintiffs, from which the defendant Elizabeth Hynton appealed to the district court. In that court a demurrer to the petition was filed, a hearing was sustained, and judgment for defendant entered. To procure a reversal of that judgment the error proceeding is prosecuted here.

Caskey & Calhoun, for plaintiffs in error. Cadwell & Cadwell, for defendants in error.

BY THE COURT. The disposition of the demurrer to the petition depends upon the construction to be giveu to the will of John Hynton. It is the duty of the court to ascertain the intent of the testator. If the plaintiff were entitled to any relief under the allegations of the petition, then the demurrer should have been overruled; if not, it was properly sustained. The counsel for plaintiffs in error claim that under the provisions of the will Elizabeth Hynton, in her own right, took no interest in her husband's estate; that under the law she was entitled to dower in the lands, to a year's support, and to a distributive share of the personalty, but as to all the remainder of the estate she took it as a devisee, in trust, for the equal and impartial benefit of all the children of herself and her husband, John Hynton. The position of counsel for defendant in error, Elizabeth Hynton, if we understand them correctly, is that under the will she took the entire estate in trust for the children, but that the trust was wholly unlimited and unrestrained, and gave her unquestioned discretion as to what she should give each child, and when; that it cannot now be important whether she took an estate for life or in fee, for in either case there is no relief for the plaintiffs so long as the mother lives; and that the court has no power over the trust.

It is not proposed to enter upon lengthy discussions to demonstrate what the testator meant by his will. Instruments of this character are so unlike in their terms, and the circumstances surrounding testators so unlike in their facts, that the decision of one case is not apt to aid in the determination of subsequent cases. It will suffice if we indicate the view this court takes of the rights of the parties to this litigation. We are not able to agree wholly with the construction given the will by the counsel of either of the parties. The will gives the possession of the property to the wife for the benefit of the children. She is to have the sole care and management of it, and may distribute it at any time and in any manner that she may think proper. This implies that she is to take the entire legal estate; otherwise the distribution could not be effectually made. The property described being the property then in existence, with no mention made of increase or profits, and being placed under her sole care and management, with power to make the distribution at any time she may deem proper, it follows that she may have the use of the property herself, and may delay the distribution during her life, providing she

takes any beneficial interest under the will at all. The property was devised for the benefit of all the children. The will does not say in trust for such of the children as the mother may select, but "in trust for the benefit of mine and her children." This language, in the absence of words indicating a different meaning, must be held to give them a joint interest in it. Standing alone, the words used would accomplish this result, without question. Should the clause giving power to distribute "in any manner she may think proper" necessarily be held to diminish or limit the equitable estate given the children? We think not. The words used are reconcilable with the idea that the testator's purpose was to give to the wife power to advance to each child from time to time, from his or her equal share, such sum as might, in the mother's judgment, be beneficial. To one she might advance means for obtaining an education, to another means to start in business, and so forth. To construe the will as giving the wife unlimited power of distribution, as to the quantity of the estate each child should have, would be to construe the term "in any manner" as if it read "in any proportion," which would allow the mother to give to three of the children one dollar each, and all the remainder to the fourth. There is no warrant for such construction.

The cases of Collins v. Carlisle's Heirs, 7 B. Mon. 13, Hoey v. Kenny, 25 Barb. 396, and Freedley's Appeal, 60 Pa. St. 344,-cited by counsel,-have been examined. Whatever similarity is presented by these cases to the case at bar is apparent, rather than real. They do not control this case, though the doctrine of the first-named case, as regards the estate of the widow, applies here. The question is not what was the purpose of some other testator in using language similar, but under different circumstances, at the time of making the will, or of one using identical language, but with it incorporating other language modifying the proceeding, and serving to explain his intent, but what was the purpose of this testator in using the language of this will, under the circumstances in which it was made?

It is reasonable to infer that the testator intended to dispose of his whole estate, and to provide for all those entitled to his bounty. His "beloved wife" was in his mind at the time the will was drawn, as well as their children. Why assume that he intended to provide for them. and not for her? We think the will should receive such construction as will make provision for all. By electing to take under the will, she accepted the benefit conferred by it, and at the same time signified her intention to assume the trust imposed. What was that? Can it be reasonably supposed that this husband intended to impose upon the wife the burden of a strict, technical trust, thus making her liable, not only for what she should actually make the property earn, but for what she might, with due care, have made it earn? We think not. Yet if the construction plaintiffs insist upon is correct, that result follows. She is entitled to the use of the property for her own benefit, and is legally responsible only for the original amount.-the principal.

The allegations of the petition show that Mrs. Hynton has disregarded the duties imposed by the trust; that she treats not only the rents, income, and profits as her own, but all of the property as well, and claims it as belonging to her absolutely; that she has conveyed away a large portion of it to a son, the defendant John Hynton, and he has conveyed a portion of that so acquired to the defendant Richey; and that she is in other ways disposing of the property, and putting it beyond her power to carry out the purpose of this will. Why should these plaintiffs be required to sit by, and see their estate thus wasted, and yet be powerless to prevent it? Such conduct as is here charged is a direct repudiation of the trust, and a court of equity has abundant jurisdiction to enforce the trust by compelling the trustee to present a statement in the nature of an inventory, showing what property she took, and its value as by an appraisal, and what has become of it, and to give bond in an adequate sum for the proper discharge of the duties of the trust; and,

in the event of neglect or refusal to appoint a trustee, to recover and take charge of the property in the interest of the cestui que trustent, accounting to the widow for the net rents and profits; also, if John has received more than his proportion, to make such order as will eventually compel a return of the

excess.

The case is not governed by section 6202, Rev. St., nor are the plaintiffs to be impeded in the lawful pursuit of their rights, because they ask a construction of the will.

It follows that the judgment of the district court sustaining the demurrer to the petition, and rendering judgment for defendants, was erroneous.

Judgment reversed, and cause remanded to the circuit court of Cuyahoga county, with directions to overrule the demurrer, and for further proceedings.

MINSHALL, J., dissents.

(44 Ohio St. 497)

SPOORS v. COWEN and others.

(Supreme Court of Ohio. December 7, 1886.)

1. EXECUTORS AND ADMINISTRATORS-SALE OF LANDS TO PAY DEBTS-LANDS FRAUDULENTLY CONVEYED BY DECEASED-REV. ST. OHIO, ? 6139.

Lands that have been conveyed to defraud creditors, and that, by section 6139 of the Revised Statutes of Ohio, are made assets for the payment of the debts of the deceased grantor, cannot be ordered sold for such purpose, until the conveyance has been set aside in a proceeding commenced for that purpose in the court of common pleas, no such jurisdiction having been conferred upon the probate court.

2. SAME-POSSESSION OF ADMINISTRATOR-REV. ST. OHIO, & 6140.

When lands have been so conveyed, the possession of the lands after the death of the grantor, by his administrator, avails nothing in a proceeding begun in the probate court for their sale to pay debts, unless such possession had been acquired by a reconveyance from the fraudulent grantee, or those claiming under him, or in an action instituted for that purpose in the court of common pleas, as provided in section 6140 of the Revised Statutes.

3. SAME-VOID ORDER-IMPEACHING.

An order made by the probate court for the sale of such lands, upon a judgment of its own, setting aside the conveyance as null and void, is of no validity whatever, and may be impeached in a collateral proceeding to recover the land.

4. JUDGMENT-ON MATTER NOT BEFORE COURT-IMPEACHING.

The judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is null and void, and may be collaterally impeached.

(Syllabus by the Court.)

Reserved in district court, Wood county.

The action below was a suit by the plaintiff, Rhoda Spoors, against the defendant, to secure the possession of a certain tract of land, some two acres and a fraction, described in the petition. She derived title from her husband, John Spoors, who on the fourth March, 1879, conveyed all his real estate to his son Jerome, who on the same day, with his wife, conveyed the land in question to the plaintiff. John Spoors having died, a petition was filed September 26, 1879, in the probate court of the county, to sell lands to pay debts; and, under an order of sale made therein, the lands sought to be secured were sold to the defendant, and a deed made by the administrator on August 9, 1880. The common pleas rendered judgment in favor of the defendant, and the plaintiff prosecuted proceedings in error in the district court, where the cause was reserved for decision in this court upon the question whether the defendant Cowen acquired a title to the lands claimed by the plaintiff, under the proceedings had in the probate court, and the deed made by the adminis