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Jackson Circuit Court.

"It is my will and I do hereby give and bequeath unto my son, James Henderson Darling (at the death or marriage of my wife, Elizabeth Darling, his mother), the half quarter section of land on which I now live, to be held and enjoyed by him and the heirs of his body lawfully begotten forever; provided that my said son shall pay all taxes which may accrue upon said lands after he arrives at the age of twenty-one years."

It is claimed by counsel for defendant that by this clause of the will James Henderson Darling took a fee simple, and having deeded it away, that the plaintiffs, of course, have no right, there being nothing for them to inherit from their father. On the other hand it is claimed that James Henderson Darling simply took a tee tail, and that he could dispose of nothing further than the interest he took by this will.

Now, the case was argued to the court in Jackson county, and submitted to us on papers which we have examined with a good deal of care since, and it is of a great deal of importance, yet we have had no difficulty in coming to the conclusions we think correct. In the first place, a great deal is said in the Ohio reports, and by counsel too, about the policy of the law upholding estates in fee simple and discouraging estates in tee tail. Now, all that can be said on that subject is simply this, and this is what the judges who have spoken on that subject in Ohio say: That while language equally well conveys two different estates, that construction will be placed upon it which will confer an estate in fee simple, in preference to an estate in tail Section 4200, Rev. Stat.,. only recognizes estates in tail. Then why argue that there is anything in the policy of the law to discourage them, further than as I have stated. We have our views on that point.

What does that item convey,-what interest does it convey? "I do hereby give and bequeath to my son, James Henderson Darling, * *

* the half quarter section on which I now live." For what purpose, and how to be held?"To be held and enjoyed by him and heirs of his body lawfully begotten forever." It won't do to stop with the granting clause of this," I hereby give and bequeath," etc. In order to determine what the testator gives and bequeaths, the habendum clause that is recorded tells how he is to have, hold and enjoy it. The purpose of the habendum clause is to describe the character of the estate conveyed by the granting clause.

That matter is treated in 1 Devlin on Deeds, Sec. 213: "The office of the habendum is to define the estate that the grantee is to take in the property conveyed," and several of the sections following, notably 220: While the habenbum cannot abridge an estate granted, yet where the granting clause does not mention the estate conveyed, the habendum may have the effect of declaring the intention, and may overcome any presumption that in its absence would properly arise from the defect in the preceding clause." Then there is a note on page 215 to Sec. 215, which gives a lengthy extract from Montgomery v. Sturdivant, 41 Cal., 290, which we think is a strong case on the point. Temple, J., delivering the opinion of the court, said: "If the habendum were entirely omitted the deed in question would undoubtedly have conveyed an estate in fee-simple and it is, therefore, contended that the language of the habendum which attempts to limit the estate granted to a life estate is repugnant.

Independently of the statute, the common law rule was that a deed like this, without the habendum, would convey a lite estate only. The

Darling v. Hippel.

estate, though different, was just as definite as that under the rule of the statute. It the argument of counsel were correct, the result would have been that the grant could not have been enlarged by the habendum. Yet we will know that where the formal parts of a deed are all used, ¦ this was the customary mode of conveying, and is still often followed. The rule of common law was only intended to apply to conveyances in which the extent of the ownership of the grantee in the thing granted was not defined in the conveyance. The statute rule was merely intended to take the place of the common law rule," referring to the California statute: "Neither was intended to override the express intention of the parties. The office of the habendum is to limit and define the estate which the grantee is to have in the property conveyed. It is not an essential part of the deed, but has generally been used, and in some states the form adopted in this case is in general use.'

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Now, that authority, independent of anything else, would be sufficient, we think, to justify the court in holding that Henderson took a fee tail simple. But our Supreme Court, we think, has decided this question in Pollock v. Speidel, 17 Ohio St., 439. The first clause of the syllabi is as follows: "Where lands are conveyed by deed to 'A, the heirs of his body and assigns, forever,' the grantee takes an estate tail." That is very nearly with this case, and precisely so, we think, in part. An estate in lee simple, as is well understood, is the full and absolute estate in all that can be granted.

Now take the fourth item. This estate is to be enjoyed by him, James Henderson Darling, and the heirs of his body and lawfully begotten forever. It would occur to any one of thought that that does not convey an absolute estate, because it is to be enjoyed in a limited degree; there is a limitation upon the holding and enjoyment of that estate. No one but his true heirs can inherit. All collateral heirs are cut off, and therefore it does not convey an absolute estate, an estate in fee simple. These plaintiffs took under the statute, not from James Henderson Darling, but by descent from their grandfather. The terms of this deed are such as to vest in the grantee an estate of inheritance. Had the conveyance been to the grantee, his heirs and assigns forever, without designating any particular class of heirs, it would have been in the usual form of conveyances of fee simple, but it was to the heirs of his body, and thus excluded collateral heirs. These words of limitation we are not at liberty to disregard. We think we are not at liberty to disregard the words of limitation in this fourth clause of the will. So by the language itself we find an estate tail was conferred on James Henderson Darling. But it is said again that if that should be the view the court should take of the case, the language used in this will clearly shows the intention of the testator to have devised to James Henderson Darling a fee simple. If there be any such intention discovered, as a matter of course, it should control. The sole purpose in considering wills, as far as possible, is the intention of the testator.

From this provision, providing that my said son shall pay all taxes after he arrives at the age of twenty-one years, it is argued that it appears it was the intention of the testator to devise a fee, and authority has been presented showing that there is such a rule, as is stated in Decker v. Decker, 3 Ohio, 157, 167: "A devise of the fee has been considered as sufficient to show an intention in the testator to create a personal charge, while a devise of an inferior interest, as an estate for life, is taken to indicate an intention to charge the land, and not the

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Jackson Circuit Court.

person of the devisee." I take it that that is the rule where there is a substantial devise to some one, and also where there is some uncertainty from the language used as to the estate devised.

We think that the words used by the testator in making the devise are too plain to resort to any such rule. But it is said further, and insisted upon, that the language used in the latter part of the fifth clause of this will indicates the intention on the part of the testator to confer a fee :"It is my will and desire and I wish to be distinctly understood that the preceding items contain my last will and testament upon this express condition that my now wife, Elizabeth Darling, shall continue to be a widow, after my decease, during her natural life, but in case that my said wife should afterward marry, then and in that case it is my will and desire that all my landed estate shall be equally divided between my three sons, viz: William, Derrick P C. and James H. Darling, and all the other property divided as aforesaid as near the manner pointed out in the respective items as the circumstances will admit."

Now, if that stood alone, and it could be interred from the language used that James Henderson Darling was to have and own the property, in case his wife should marry again, might have considerable effect, probably a controlling effect, in reflecting upon his intention when he made the fourth item. But we think that relers not to the estate, but simply to the real estate conveyed. The devises are, in the first item he gives to one of his sons about eighty acres, in the second about seventyeight, and in the fourth about eighty acres, but we think there can be no mistaking what that means, when you refer to the will again. In each of the items, second, third and fourth, where he makes these devises, is in parentheses the following: "At the death or marriage of my wife, Elizabeth Darling, his mother." Now take the fourth item again: "It is my will, and I do hereby give and bequeath unto my son, James Henderson Darling (at the death or marriage of my wife, Elizabeth Darling, his mother)," etc. So that has the same contingency that he refers to in his fifth clause. In other words, James Henderson Darling is to take whatever this fourth item gives him at the death or marriage of his mother. Now, why is it put: "I wish to be distinctly understood that the preceding items contain my last will and testament upon this express condition that my now wire, Elizabeth Darling, shall continue a widow," etc.? Why is it put there in each of the items before? It is put there simply to emphasize it, not to explain, but to leave no question in the mind of any one interested that the interest given to each of these sons is to vest in them at the death, or is to vest in them on the marriage of his wife. We do not see anything in the language used in this will that controls the leading effect of the language, which, as I have said before, gives an estate in tail simply.

Now, how stands the record in these courts? I see there is one assignment of error in the petition in error that the judgment of the court is against the evidence. Our attention was not called to the journal entries when the case was argued, and we were little surprised to find the difference of them when we referred to them.

"This day this cause came on to be heard and the plaintiffs and the defendant each waived the right to trial by jury, and the said cause was submitted to the court upon the pleadings and an agreed statement of the facts; on consideration whereof, and being fully advised in the premises, the court doth find upon the issues joined in favor of the defendant, and that the plaintiffs are not seized of the estate in said

Darling v. Hippel.

premises in manner and form as the said plaintiffs have in their petition averred."

Then this is the entry as to the hearing of motion: "And thereupon came the said plaintiffs and filea their motion to set aside the finding and judgment herein for the reasons and upon the grounds set forth in said motion; and the said motion was submitted to the court, and the court on consideration whereof, and being fully advised in the premises, doth overrule said motion, to which ruling o! the court in overruling said motion for a new trial the plaintiffs except."

There is no permission to prepare a bill of exceptions, and there is no bill of exceptions. I take it that this paper, which is an agreed statements of facts, is the evidence that was referred to in the journal entry. But it is too indefinite. It simply says "upon the issues joined and an agreed statement of facts." The proper way was to have had a bill of exceptions. It the facts had been recited in the journal entry, that would have been sufficient. It would probably have been sufficient it there had been added to this statement "upon an agreed statements of facts, which is here referred to, marked 'A' and made part of this entry." That is a pretty loose practice, and a practice which should not be tolerated.

So I take it that upon these matters of fact which are spread out in this agreed statement of facts, the common pleas court decided this case, and which we are not permitted to look at. We cannot see that the judgment of the court was against the weight of the evidence for that reason. This court would have to presume that the judgment of the court below was correct as far as this matter of evidence was concerned. So that regulates the matter simply as to whether or not the court below was correct in its ruling on the demurrers.

I will say something as to this second defense. I have already stated that the second defense was simply the statute of limitations of twenty-one years. It says that on October 2, 1843, one John D. James, baving been previously placed in possession of the premises described in the petition, sold and conveyed the same by warranty deed in fee simple, to one John Newman, who afterwards sold and conveyed said premises, and so on, from one to another, until the present occupant, who has been in possession fitty years. Therefore they say that these parties are barred by the statute of limitations.

We all understand that where a party occupies real estate openly, continuously, notoriously and adversely for a period of twenty-one years, that he can hold it against the whole world, especially against that portion of the world that had an opportunity to make a claim to it. Now, with the exception of this second defense, it will be seen that counsel have not set out the facts, and I suppose that is because they thought it unnecessary, still, it is proper enough to conform to the facts in the case. They do not set out that James Henderson Darling took a fee simple in his real estate, and that consequently the statute which begun to run against him would be effective as to all those who held after him, and either by deed or under the statute, by claiming under the statute of descent. In other words, it does not say that these plaintiffs had at any time been in possession, that they might have proved the statute running against them, or could claim, in other words, possession of this property. And until it does, we think that it does not state a good defense; and we think the court was wrong in holding that it was a good defense. No doubt the court found that James Henderson Darling died in 1895,

Jackson Circuit Court.

and that the statute did not begin to run against these plaintiffs until his death. I am alluding to the terms of this second defense. We do not think it states a good defense.

Now, as to the first defense: I have already stated in opening the case that it was the intention of the pleader in this answer to make two questions, first, the setting out of the will, claiming that under it James Henderson Darling took a fee simple, and the further averment that he nad disposed in his lifetime of all his real estate, and that there was nothing left for these parties to inherit, and consequently by this denial we raise the question, I think, that there was a detective admission to probate. Now, I could say nothing further than I have already said as to the first point. We think James Henderson Darling did not take a fee simple.

As to the denial, it is as follows: "The said James Henderson Darling, as a matter of fact, was never in possession of said premises as owner thereof, and had no title thereto legal or equitable. Neither the legal or equitable title to said premises ever vested in said plaintifls, in so far as the records of this county disclose, and the defendant believes and avers that they nor either of them possess a title to said premises not of record; that they never were in possession of said lands, nor possessed nor procured any title thereto."

We think that that does not make a square denial of the averments of the petition. As I before stated, the statute at that time required the court to set out testimony and proof, in admitting a will to probate. It was certainly very irregular in the court failing to do so; but that does not make the action of the court a nullity, of no importance. The court had jurisdiction of the matter in hands, and the matter is not directly attacked. So we hold that the first defense does not constitute a defense; and for the reasons stated, this judgment will be reversed, and upon the grounds that the court erred upon was in overruling the demurrer to the first and second defense.


[Fairfield Circuit Court, September 11, 1891.]

Jenner, Albaugh and Follett, JJ.



Where, in making surveys and deeds of his land, grantor conveyed to different parties different parcels out of a 250 acre tract of land, and in the last deed intended to and supposed he had conveyed all his remaining interest in said tract, but by reason of an erroneous survey said deeds, conforming thereto, left a tract of eight acres unconveyed, the grantees are not entitled to the unconveyed land, although some of the deeds did not convey in number of

The judgment for the heirs of Richard Hooker, Sr., was reversed by the Supreme Court, unreported, 52 Ohio St., 621, and judgment for plaintiffs in error, Carrie S. and George W. Hooker.

Assignments of error in Supreme Court:

1. Said court erred in overruling the motion of these plaintiffs in error, for a new trial, and to vacate and set aside the findings, judgment and decree, adverse to them, on each and all the causes, grounds and assignments in said motion stated.

2. That said conclusions of law as found by said court, and said judgment and decree, against these plaintiffs in error, and in favor of said defendants in error,

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