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Arthur; Alexander Bourne, husband of Helen M. Bourne, another deceased daughter of Duncan McArthur; one adult and two minor sons of Mrs. Bourne; and Samson Mason, and Samuel F. Vinton, as devisees in trust of lands not now in question.
That bill further alleged "that the aforesaid persons are the only heirs and personal representatives of the said Duncan McArthur, and that they are) also the only persons specified in the said instrument in writing, claimed as the will of said Duncan McArthur;" and made them defendants; and prayed that an issue might be directed to be made up whether that instrument was the last will of Duncan McArthur or not, and that it might be set aside as void, and for further relief. On July 10, 1839, the complainant in that cause had leave to amend his bill, and the cause was continued. On October 7, 1839, he filed a supplemental bill, alleging that a daughter had been born to Mrs. Trimble, and was a granddaughter of Duncan McArthur, and as such entitled to a provision under, and interest in, the supposed will, and praying that she might be made a defendant. Among the defendants named in the bill and supplemental bill in that cause were all the children and grandchil dren of Duncan McArthur who were in existence at any time during the pendency of that suit; and due service of process was made on all of them. Mason and Vinton, trustees, were served with process, and severally filed answers, declining to accept the trust conferred upon them by the will, and disclaiming all interest in the lands devised to them.
On October 22, 1839, the following proceedings were had in that cause: The court appointed James McD. McArthur guardian ad litem of his three minor children; Mrs. Coons guardian ad litem of her minor son; Mrs. Trimble's husband guardian ad litem of their minor daughter; Mrs. Anderson's husband guardian ad litem of their minor son, and of Mrs. Bourne's two minor sons; and Mrs. Kercheval's son-in-law guardian ad litem of her minor son; and an acceptance of each appointment was filed. On the same day answers to that bill were filed in behalf of all the defendants. The answers of the four children of the testator, James McD. McArthur, Mrs. Coons, Mrs. Anderson, and Mrs. Trimble, and the husbands of the last two, as well as the answers of Mrs. Kercheval's daughter and son-in-law, and of Alexander Bourne and his adult son, severally stated that they admitted and confessed all the allegations of the bill. The answer of Mrs. Coons further stated that, "since the filing of the same she has, to-wit, at the present term of October, resigned the office and charge of executrix of the said supposed last will and” testament of her deceased father, the late Gen. Duncan McArthur, from a conviction of her inability to discharge the duties incumbent on her as such executrix, and the impossibility of procuring suitable associates agreeably to the provisions of the said instrument in writing." The several answers of the infant defendants by their guardians ad litem stated that they would neither admit nor deny the allegations of the bill, but left the complainant to prove them. On the same day the court ordered "that an issue at law be made up between the parties to try the validity of said will and to ascertain by the verdict of a jury whether said writing is the valid last will and testament of the said Duncan McArthur or not;" and that in making up that issue the defendants file a declaration affirming it to be his will, and the complainant plead thereto that it is not his will.
On October 27th, the defendants filed a declaration and the complainant a plea accordingly. On October 28th, a jury was impaneled and sworn and eturned a verdict that the instrument "is not the valid last will and testament of the said Duncan McArthur, deceased;" and on the same day the court entered this decree: "The jury to whom was committed for trial the issue made in pursuance of the order of the court, between the respondents and the complainant, whether the instrument filed and exhibited in this cause, and purporting to be the last will and testament of the late Duncan v.5s-42
McArthur, of Ross county, deceased, was or was not the valid last will an testament of the said Duncan McArthur, deceased, having returned their verdict that the said instrument in writing is not the valid last will and testament of the said Duncan McArthur, deceased; and the court, having heard the arguments of counsel and being fully advised in the premises, are of opinion that the law and equity of the case are with the complainant, and do order, adjudge, and decree that the said instrument in writing, filed and exhibited by the complainant, purporting to be the last will and testament of the said Duncan McArthur, deceased, and admitted to probate as such last will and testament in the court of common pleas of this county, be annulled, set aside, and held for naught; and the infant defendants shall respectively have until they severally attain the full age of twenty-one years and six months thereafter, and the femes covert defendants shall respectively have until they are discovert and six months thereafter, to show cause against this decree. And it is further ordered by the court that the defendants pay the costs herein expended, taxed at forty dollars and twenty-five cents. The complainant's costs are taxed at thirty-three dollars and fifty-five cents. The defendants' costs are taxed at six dollars and seventy cents."
William McDonald, appointed on December 4, 1839, administrator of the estate of Duncan McArthur, as stated in the record annexed to the present bill and above set forth, afterwards administered the entire personal estate of the deceased, and his final account was settled by the court on August 2, 1865. Upon a petition for partition of all the real estate of which Duncan McArthur died seized, filed on April 2, 1840, by his daughter Mrs. Anderson and her husband, against Duncan McArthur's other four children, Allen C. McArthur, James McD. McArthur, Mrs. Coons, and Mrs. Trimble and her husband, and against the two children of his deceased daughter, Mrs. Kercheval, the court of common pleas for Ross county, on April 17, 1841, made partition among them, one-sixth part each to said Allen C. McArthur, Mrs. Coons, Mrs. Anderson, and Mrs. Trimble, one-sixth to the heirs of James McD. McArthur, (who had died pending that suit,) and one-twelfth to each of the two children of Mrs. Kercheval. Upon the rendition of the decree in partition, the parties thereto entered into possession of their shares, and afterwards made sales of portions thereof to purchasers for valuable consideration, and without actual notice of any adverse title or claim; and they, and other persons claiming under or through them, respectively occupied and improved the same for the period of 34 years and 11 months, and until the filing of the present bill, and during all that time their use and possession was distinct, continued, exclusive, actual and notorious, under a claim of title in fee-simple, and adverse to the claims of all other persons.
*After the decree setting aside the will, and before the filing of this bill, one of James McD. McArthur's children died under nine years of age, and another child was born to him; the son of Mrs. Coons died, unmarried and intestate, and she married William Allen and had a daughter by him; Mrs. Anderson had five more children born, of whom two died under 11 years of age; Mrs. Trimble's daughter married one Madeira, and died, leaving three children; and Allen C. McArthur, Duncan McArthur's eldest son, had five children born to him, four daughters and a son. This son, also named Allen C. McArthur, was the youngest grandchild of Duncan McArthur who arrived at 21 years of age. He arrived at that age on March 4, 1875, after the death of all the childrer of Duncan McArthur; and he, together with his four sisters and their husbands, all being citizens of Illinois or of Kentucky, are the plaintiffs in the present bill, which was filed on March 17, 1876. An authentic copy of the will of Duncan McArthur, and of the original probate thereof, was recorded by the probate court in Pickaway county, on February 11, 1876. The defendants in this bill were all citizens of Ohio, and were the three surviving children of James McD. McArthur, the surviving daughter of Mrs.
Effie McA. Allen, the four surviving children of Mrs. Anderson, the three children of Mrs. Madeira, and numerous purchasers of different parcels of land from the parties to the proceeding for partition. The present bill (without mentioning the proceeding to annul the probate, set forth in the answers) alleged that, immediately after the death of Duncan McArthur, his five children, desiring to obtain for themselves the whole of his real and personal estate, and to deprive his grandchildren of all the provisions intended for them by his will, unlawfully combined and confederated with other persons, and, contriving to defraud the plaintiffs, procured and brought about the tender and acceptance of the resignations of the executors, and appropriated to their own use all his personal property, and, by means of the proceeding in partition above mentioned, divided all his lands among themselves, and conveyed? parts of the same to other persons, and, in defense of their fraudulent conspiracy and doings, pretended that he died intestate, and they as his children had inherited his lands. These allegations were denied in the answers.
At the hearing upon bill and answers, the circuit court dismissed the bill, and the plaintiffs appealed to this court.
Wm. M. Ramsey and L. Maxwell, Jr., for appellants. R. A. Harrison, P. C. Smith, W. T. McClintock, H. F. Page, and John W. Herror, for appellees. GRAY, J. This case presents three principal questions: First. Whether* the equitable estate in fee, which Duncan McArthur, by his will, undertook to devise to his grandchildren, children of his five surviving children, was vested or contingent. Second. Whether the devise of that estate, so far as it is to the present plaintiffs, was void for remoteness. Third. Whether the decree in 1833, setting aside his will, and annulling the probate, is a bar to this suit.
1. The principal provisions of the will of Duncan McArthur, material to the decision of this case, are as follows:
By the fifteenth clause, he directs that his lands in the counties of Ross and Pickaway shall be leased or rented by his executors "until the youngest or last grandchild which I now have, or may hereafter have," the child of either of his five surviving children, Allen C., James McD., Effie, Eliza Ann, or Mary, "who may live to be twenty-one years of age, shall arrive at that age.' By the sixteenth clause, he directs that, until that time, the income of these lands, and the dividends of all stocks held by him, or purchased by his executors, shall be by them annually divided equally among the five children aforesaid, or the issue of any child dying, and among the grandchildren also as they successively come of age.
The seventeenth clause provides as follows: "It is my further will and direction that after the decease of all my children now living, and when and as soon as the youngest or last grandchild, in the next preceding clause but one of this will designated and described, shall arrive at the age of twenty-one years all my lands" in question "shall be inherited and equally divided between my grandchildren per capita, the lawful issue of my said sons and daughters, Allen C., James McD., Effie, Eliza Ann, and Mary, for them and their heirs forever, to have and to hold, or to sell and dispose of the same at their will and pleasure; and in like manner all the stocks belonging to my said estate, whether invested before or after my death, shall at the same time be equally divided among my said grandchildren, share and share alike, per capita; but it is to be understood to be my will and direction that if any grandchild aforesaid shall have died before said final division is made, leaving a child or children lawfully begotten, such child or children shall take and receive per stirpes (to be equally divided between them) the share of my said estate, both real and personal, which the parent of such deceased child or children would have been entitled to have and receive if living at the time of such final distribution." The word "deceased," near the end of this passage. was evidently intended to be prefixed to the word "parent," instead of to th
words "child or children, so as to read "deceased parent of such child o children." By the eighteenth clause, he directs that "in such final distribu tion of my lands" the executors for the time being shall make deeds of parti tion "to and in the names of those who may be thus entitled thereto;" and, "to enable my executors the more effectually to execute the powers and duties by this will devolved upon them, and to protect my said children and grandchildren against fraud and imposition," he devises the lands to his executors and their successors, "and to their heirs, in trust for the uses and purposes and objects expressed in this my will, and the performance of which is herein above directed and prescribed, to have and to hold the title thereof till such final division or partition thereof, and no longer." By the twenty-fourth clause, he appoints three executors, and directs and requests that if either of them shall die, resign, or refuse to act, the court having probate jurisdiction for the county of Ross shall appoint a new one instead to act as an executor with the others, so that there shall always be three executors.
The devise in the eighteenth clause of the title in the lands to the executors and their successors, and their heirs, in trust for the uses and purposes expressed in the will, to have and to hold until the final division or partition, clearly gave them an estate in fee, to last until that time. Doe v. Edlin, 4 Adol. & E. 582; Maden v. Taylor, 45 Law J. (N. S.) c. 569. And there car be no doubt that, as contended by the learned counsel for the defendants, the powers conferred and the trusts imposed upon the executors were annexed to their office of executors, and did not make them trustees in another and different capacity. Colt v. Colt, 111 U. S. 566, 581; S. C. 4 SUP. CT. REP. 553; Treadwell v. Cordis, 5 Gray, 341, 358; Gandolfo v. Walker, 15 Ohio St. 251.
The equitable estate created by the gift in the sixteenth clause of the income to the children and grandchildren, being an estate which must endure for the lives of the children, and might endure throughout the lives of the grandchildren, though subject to be sooner determined in the contingency of the coming of age of the youngest grandchild, was technically an estate for life. 2 Bl. Comm. 121. The nature of the equitable estate in remainder created by the seventeenth clause demands more consideration. The counsel, for some of the defendants contended that it was contingent upon the arrival of the youngest grandchild at 21 years of age. In that view, the whole estate in remainder, being dependent upon the termination of the particular estate for life, and vesting at that time and not before, would be in legal effect an equitable contingent remainder to the grandchildren then living, and the issue then living of grandchildren theretofore deceased, as one class.
In behalf of other defendants it was contended that the remainder in fee expectant upon the estate for life vested immediately in the grandchildren living at the death of the testator, opened to let in after-born grandchildren, and vested in them successively at birth, and would be divested as to the shares of those grandchildren only who should die, leaving children, before the determination of the life-estate, by force of the direction that such children should take those shares. In this view, all the grandchildren took a vested remainder in fee; and the gift over to the children of any deceased grandchild, inasmuch as it did not depend upon any precedent particular estate, but was by way of substitution for the devise in fee to that grandchild, was an executory devise.
For many reasons, not the least of which are that testators usually have in mind the actual enjoyment rather than the technical ownership of their property, and that sound policy as well as practical convenience require that titles should be vested at the earliest period, it has long been a settled rule of construction in the courts of England and America that estates, legal or equitable, given by will, should always be regarded as vesting immediately, unless the testator has by very clear words manifested an intention that they should be contingent upon a future event.
In the will before us the testator directs the income to be divided annually, in specified and changing proportions, among his five children living at his death, and their children, until the youngest grandchild comes of age. He gives no part of the income to children of grandchildren. He gives the fee, when the youngest grandchild comes of age, to the grandchildren and the children of deceased grandchildren. His general intent clearly is to give the income of the estate to the children and grandchildren so long as any grandchild is under age, and the principal to the issue of the five children, whether such issue are his grandchildren or his great grandchildren.
If all the children and grandchildren should die before any grandchild should come of age, the distribution of the income would necessarily cease. In that event, if any of the grandchildren dying under age should leave children, the effect of holding the remainder to be contingent upon the coming of age of the youngest grandchild would, as that contingency had never happened, cut off the great grandchildren from any share in the estate, in direct contravention of the general intent of the testator. The more reasonable inference is that, upon the determination of the life-estate by the death of all the children and grandchildren, for whose benefit it was created, the great grandchildren would be immediately entitled to the remainder. Castle v. Eate, 7 Beav. 296; Manfield v. Dugard, Gilb. Eq. 36; S. C. 1 Eq. Cas. Abr. 195, pl. 4. Upon that construction, the contingency contemplated must necessarily happen at some time, either by the arrival of the youngest grandchild at 21 years of age, or by the death of all the grandchildren under age; and the case would come within the settled rule that "where a remainder is so limited as to take effect in possession, if ever, immediately upon the determination of a particular estate, which estate is to determine by an event which must unavoidably happen by the efflux of time, the remainder vests in interest as soon as the remainder-man is in esse and ascertained: provided nothing but his own death before the determination of the particular estate will prevent such remainder from vesting in possession." Doe v. Considine, 6 Wall. 458, 476; Moore v. Lyons, 25 Wend. 119, 144; Blanchard v. Blanchard, 1 Allen, 223, 227.
The terms in which the testator has expressed his intention likewise point to a vesting of the remainder in all his grandchildren. The only gift of real estate in remainder to grandchildren is contained in the opening words of the eighteenth clause, by which the testator directs that "after the decease of all my children now living, and when and as soon as the youngest grandchild shall arrive at the age of twenty-one years," the lands "shall be inherited and equally divided between my grandchildren per capita, the lawful issue of my said sons and daughters," in fee. This gift is not to such grandchildren only as shall be living at the expiration of the particular estate; but it is to "my grandchildren per capita, the lawful issue of my said sons and daughters," words of description appropriate to designate all such grandchildren. At the expiration of the particular estate, the lands are to be "inherited and equally divided" among the grandchildren, and "in like manner" the stocks are to be "equally divided" among them. The real estate and the personal property are clearly to go to the same persons and at the same time.
The word "inherited," which is applied to the real estate only, implies taking immediately from the testator upon his death, as heirs take immediately from their ancestor upon his death. Devises or bequests in remainder, by the use of similar words, though preceded, as in this case, by the word "then," have been often held to be vested from the death of the testator. Bullock v. Downes, 9 H. L. Cas. 1; Mortimore v. Mortimore, L. R. 4 App. Cas. 448; Parker v. Converse, 5 Gray, 336; Dove v. Torr, 128 Mass. 38. The case of Thorndike v. Loring, 15 Gray, 391, cited for the defendants, is clearly distinguished by the fact that there the bequest of the principal, at the expiration of fifty years, was confined to "those who would then be my lawful heirs and entitled to my estate, if I had then died intestate."