
    Elizabeth Huston et al. v. Emanuel O. Craighead et al.
    1. Subject to the payment of bis debts and certain legacies, a testator devised and bequeathed to his wife all his property, to be held by her during her natural life, provided she lived a widow; and declared it to be his will that she should have the entire management of his estate, and that she might sell and dispose of it whenever and in such manner as she might “think best for herself and heirs; ” and provided that, at the death of his wife, whatever might be left of his estate alter payment of the legacies and the debts of his widow, should be equally divided among his children. Held:
    
    That the will does not give to the wife an absolute right to the personal' property of tho testator, nor a fee simple in his real estate, but gives her a life estate and life support, with the power to manage, sell, and dispose of the property in any manner that, in her judgment, will best promote her own welfare and benefit the estate; but she is not thereby authorized to dispose of the property by giving it to some of the children of the testator, for the mere purpose of defeating his intention^ that all his children should share equally in the distribution of his-estate.
    2. Where a petition shows a good cause of action, the mere failure to show that it accrued within the period limited by statute for bringing the-action, is not a good ground of demurrer.
    Appeal. Reserved in the District Court of Brown county.
    The case was reserved for decision here from the District Court of Brown county, to which it was appealed from the-Common Pleas. It stands upon demurrer to the petition, which shows that the parties to the case are the heirs of Robert Craighead, deceased, being his living sons and daughters, and the children of those that are deceased.
    Robert Craighead, having a wife and eight children, made his will December 23, 1835, and died in.December, 1856. His will was probated December 29, 1856, and his-widow, Elizabeth Craighead, elected to take under the will-
    After providing for the payment of the testator’s funeral expenses and debts in the first items of the will, the third' is as follows:
    “ Third. I give, devise, and bequeath to my beloved wife,. Elizabeth Craighead, in lieu of her dower, all my personal and real property of every description, to be held by her' during her natural life, provided she lives a widow, to be by her managed and disposed of as hereinafter provided and directed.”
    In the next three items of the will, so far as material to-be here stated, the testator directs the payment of a certain sum to each of several of his children named, equal in amount to that advauced to each of his other children, and that the latter shall receive no part of his estate until this-is done.
    The remaining items of the will are as follows :
    “Seventh. It is my will that my beloved wife Elizabeth have the whole and sole control and management of my estate, personal and real, and that she may sell and dispose of my personal and real estate, at such times and in such manner as she may think best for herself and heirs, and that'she make such arrangement for the payment of legacies and bequests herein made as she may deem best and most advantageous.
    “ Eighth. It is my will that, at the death of my wife, if anything be left of my estate, personal or real, after the payment of the bequests herein made, and of the just debts of my widow, it shall be equally divided among all my children, share and share alike.”
    The legatees under the fourth, fifth, and sixth items of the will, received of the testator in his lifetime, by way of advancement, the full amount of their respective legacies.
    The testator, at the time of making his will, and when he died, owned 224 acres of land, which was his homestead, and the proceeds of which was sufficient to support the widow. The land was worth from six to eight thousand dollars ; and the testator left an equal amount of personal property, out of which the widow paid the small indebtedness left by him.
    It is further charged in the petition, that three of the children of the testator, for the purpose of defrauding the others out of their share of the residuary fund, combined with the widow and procured the personal estate to be by her appropriated and given to them; and, with the same intent and for the same purpose, that the widow conveyed the land to one of the children, Emanuel O. Craighead, for the consideration of three thousand dollars and her life .support, being less than one-half its value; that the note of Emanuel O. for three thousand dollars was taken therefor, which has since been wrongfully obtained and destroyed by him without payment (without stating when this was done), for the purpose of defrauding the other legatees of the testator; and that the same was never paid either before or since the death of the widow.
    The petition charges that, at the death of the widow, the whole estate had been procured of her by Emanuel, John, and Robert, three of the children of the testator, without paying therefor, for the purpose of defrauding the other children of the testator out of their just rights under the will; and prays that they may be compelled to account.
    
      J. Sloane, for plaintiffs:
    Elizabeth Craighead, the testator’s widow, took only a conditional possessory title, for her own life, in trust for the use and benefit of herself and children, with the power of management and sale, for the purposes of the trust, and for .no other purposes.
    We maintain, that by the use of the words, “ as she may think best for herself and heirs,” the testator intended, not to enlarge the bequest to the widow, as elsewhere expressed in the will, but to define and limit it, by an expression of the uses and purposes for which she was to hold the possessory life estate, previously given her, and the power of sale.
    On our construction of the will, the testator acted naturally in making it; he did that which a man with unperverted, natural affections would have been, under the circumstances, likely to do; he applied all his property for the benefit of all the natural objects of his bounty. On our construction of the will, the testator did a sensible thing, in making it. While he made a liberal provision for the support of his widow, and put into her hands all the means that were meant for the maintenance and education of his minor children, he took care, by making her estate in the property a trust estate, to secure to the minor children their maintenance and education, and to all the children the •benefits and advantages intended for them.
    On the adverse construction of the will, the testator, substantially, disinherited all his children, and left the four minors, two or three of whom must have been of tender years, without any provision whatever for their support and education, while he made for the widow a very liberal, not to say a “ magnificent,” provision. I ask attention to the language of the court in Howe v. Fuller et al., 19 Ohio, 51, 54.
    The will does not, if the construction claimed by the defendant be the true one, provide what should be done, upon the marriage of the widow, with the residue of the estate, after the payment of the debts and the five specific legacies.. The testator, on this construction, in that event, died intestate as to that residue. But the law, in the matter of the-construction of wills, presumes that if a man makes a will at all, he does not intend to die intestate as to any part of his estate. The will expressly shows that the testator did contemplate the possible, if not probable, event of the widow's marriage; and yet, according to the construction of the adverse counsel, he left undisposed of, in that event, the great bulk of his estate. On our construction, no such difficulty arises.
    If it be objected that our construction makes the widow,, who is a beneficiary, a trustee, we cite the following cases in which the trustees were also beneficiaries: Franklin v. Osgood, 14 Johns. 526, 565; Bloom v. Waldron and wife, 3 Hill, 361.
    The argument for the adverse construction is built principally upon the power to sell, given to the widow, in the-will. The will, it is said, gives her power to convey a legal fee-simple. Therefore, it is argued, it must have been the-intention of the testator to give her a legal fee-simple; for how could she convey a legal fee-simple if she did n’t have-a legal fee-simple?
    If, applying some of the dogmas of the books, it must beheld, in this case, that the widow, as incident and necessary to her power to sell, took a fee-simple, plainly, on the face of the will, it was an equitable fee-simple; that is, a legal fee-simple in trust for the uses and purposes expressed in the will. 2 Redfield on Wills, 114, 123, and note 1; Bloomer v. Waldron, 3 Hill, 361; 1 Sugden on Powers, 193; Jackson v. Schauber, 8 Cow. 186; Floyd v. Johnson, 2 Litt. 115; Peter v. Beverly, 10 Peters, 532; Chestnut v. Champion et al., 2 Hill, 608
    
      
      Thomas & Pearson, for defendants:
    The plaintiffs in error claim that Elizabeth Craighead took the property of the testator under his will: 1. To pay his funeral expenses; 2. To pay his debts; 8. To pay the specific legacies mentioned in his will; 4. For her own support during life, if she remained his widow, and to pay her debts after her death, and distribute the residue among the residuary legatees mentioned in the will, share and. share alike.
    A moment’s consideration is sufficient to convince us-that such could not have been the intention of the testator, or if it was, that he required what could not be specifically or literally performed by the trustee. How could she pay her own funeral expenses and debts due at her death, or distribute his estate after the expiration of her own estate therein, which did not terminate but with her marriage or death ?
    Could the testator have intended so to restrict his bosom companion, the sharer of his toils and sorrows, in the enjoyment of his property, the result,.no doubt, of their joint toil, and impose upon her in the days of her decline such onerous duties as would necessarily grow out of her relation to his estate as trustee, with the poor privilege of drawing from it a bare support ?
    But whether Elizabeth Craighead took her husband’s estate in trust, or otherwise, can only be determined by the language of his will; his words are the only means to-which we can resort to ascertain his intention.
    What is a trust? See 2 Bouv. 607; Hill on Trusts, 65.
    Trusts are either express or implied. Bouvier, same-page.
    Three things are said to be indispensable to constitute a valid trust: 1. Sufficient words to raise it; 2. A definite-subject; and 3. A certain or ascertained object.
    It can not, we apprehend, be claimed that the will under-consideration created a trust by implication, since no such conclusion can be deduced from the nature of the transaction, as matter of intention. Nor is such a conclusion superinduced by operation of law growing out of the equity of the transaction. Hence if a trust was created, or existed, it was by express terms in the will, or by the use of such terms as necessarily imply the intention to create a trust.
    It is manifest that such a trust is not created in express terms. Hence it must follow, if a trust exists, it must appear from the language used that it was the intention of the testator to create a trust — to give the estate to his wife for the use and benefit of his children.
    It is worthy of remark, that if such was his intention he so constantly avoided the use of a word most commonly employed for the purpose designed, and that would most clearly, and beyond doubt, express his intention.
    No trust can be implied where the donee has power to dispose of the property. Lewin on Trusts, 196, and authorities cited.
    Now, if a trust is created we must look for it in the directions given by the testator as to what shall be done with the estate just devised to his wife for life. Clearly a devise for life creates no manner of trust, either express or implied. But here, by way of settling the question beyond all dispute, the devise is in lieu of dower, thus creating an estate in her which she took as a purchase for a valuable consideration, entitling her to hold the same though all other legatees were cut out. Hubbard v. Hubbard, 7 Met. 50.
    The estate thus given is to be by the devisee “ managed and disposed of.” How? “It is my will that she have the whole and sole control, and management of my estate, personal and real, and that she may sell and dispose of my personal and real estate at such times and in such manner as she may think best for herself and heirs.” Thus the devisee is given a life estate and is clothed with the fullest power, in the strongest possible language, of controlling and disposing thereof, as she, not her grandchildren or son-in-law, may think best.
    The court is asked so to construe this language, plain and explicit as it is, as to create in the devisee a trust estate only. We respectfully submit that the language being-plain, the court must look to it alone for the intention of the testator, and where the intent of the testator is manifest there is no room for construction. 4 Pick. 204; 5 Pick. 539.
    We have, thus far, attempted only to show that the will of Robert Craighead did not create in his widow a legal estate in trust. But there is another proposition, susceptible, we think, of the clearest demonstration, that settles the question beyond controversy.
    The language used in the will, ex vi termini, created in the devisee, Elizabeth Craighead, an absolute estate in fee-simple. Wells v. Doane, 3 Gray, 201; Gleason v. Fayerwether, 4 Gray, 348; Jackson, ex demise. Bush and wife, v. Coleman, 2 Johns. 391; Lillord v. Robinson, 3 Litt. 415; Barkley v. Dupuy, 6 B. Mon. 92; Redfield on Wills, 765, and cases cited.
    Another question is raised by the demurrer, which is equally fatal in law, though not in good conscience, to the plaintiffs’ claim.
    It is charged in the petition, in substance, that on or about the 21st day of February, 1857, the devisee sold the real estate in fee-simple to the defendant, Emanuel O. Craighead, for the purpose of defrauding the plaintiffs, and certain others claimed to be cestuis qui trust of said estate, the said defendant abetting her in the perpetration of the-fraud; and that she, and all the defendants combining, had previously, with the like intent, disposed of all the-personal estate.
    The statute of Ohio limits the right of action for relief on the ground of fraud to four years from the time the-right accrued. 2 S. & C. 949, sec. 15. The right of action accrued in this case the 21st clay of February, 1857, and on-that day the statute commenced to run, unless the fraud' was not then discovered, and if the fraud was not then discovered it is necessary to allege that fact to tal£e the case-out of the statute. Prima facie the fact is as we claim.
    Even if this be a trust, where a trust may be enforced at: law the statute of limitations will bar the action, and in such case the bar will be applied in equity as well as in law. Talbot v. Todd, 5 Doane, 199; Lexington and Ohio R. R. Co. v. Ridges, 7 B. Mon. 556.
    
      J. Sloane, in reply:
    As to the limitation question :
    1. The widow died May 5, 1862. She was entitled to possession till her death. This action was begun January 5, 1866.
    2. Emanuel Craighead has made himself, in a sort, a 'trustee of the land. Clyde v. Simpson et al., 4 Ohio St. 445, 464.
    3. The demurrer does not raise this question because it does appear on the face of the petition that the cause of action is barred. Code, sec. 87; Sturges et al. v. Burton et al., 8 Ohio St. 215.
   Day, J.

The case comes before us upon demurrer to the petition by one of the defendants, Emanuel O. Craighead, the other defendants being in default. Five grounds of demurrer are alleged, but they are all included in two: 1. The petition does not state facts sufficient to constitute .a cause of action; 2. It does not show that any cause of action accrued within four years next before the commencement of the action.

The plaintiffs claim under the will. Their right is questioned on the ground that the widow took, under the will, an absolute right to the personal property and a fee-simple in the real estate of the testator. This presents the principal question raised by the demurrer : Does the will make the widow the absolute owner of the property ? We think not. Such a construction contravenes the manifest intention of the testator. If he so intended,- lie might easily have given her an unlimited estate, subject only to the payment of specific legacies; but, instead of that, by the third item, he gives her all his property, “ to be held by her during her natural life, provided she lives a widow.” This clause, at most, gives her only a life estate in the property, which is to be “managed and disposed of” by her as directed in the succeeding clauses of the will. After directing to whom certain specific legacies shall be paid, in the seventh item of the will the testator more specifically defines how his widow shall “ manage” and “dispose” of his estate. She is to have the “ whole and sole control and management” of it. She is also empowered to “sell and dispose” of it “as she may think best for herself and heirs,” and arrange for the payment of the legacies as she may deem most advantageous. That the testator only intended by this item to confer upon his wife the sole management of his estate, and the poioer to dispose of it for her benefit and that of the heirs, and not to enlarge the life estate expressly given her to an estate in fee, is manifest from the fact that, in the next item, he disposes of what may remain of his estate, at the death of his wife, after paying his debts, legacies, and her debts.- Upon this view only can all parts of the will be harmonized ; and it is fully sustained by the holding in the case of Baxter v. Bowyer, 19 Ohio St. 490. In Surman v. Surman, 5 Maddock, 123, under provisions of a will similar to this, it was held that the remainder, after the termination of the life estate, was well limited over. And to the same effect is Upwell v. Halsey, 1 Peere Williams, 651.

Does the petition show that anything was left of the estate of the testator, at the death of the widow, to be divided, as directed by the will, among his children?

It is averred that Emanuel O. Craighead procured of the widow a conveyance of the real estate left by the testator, and, as a part consideration therefor, gave his promissory note for $3,000. It is also alleged that he afterward wrongfully obtained possession of the note, without payment, and denies all indebtedness on account thereof. If he is still justly indebted to the estate in the amount of this note, as it would seem that he is from the averments of the petition, there is. at least so much left of the estate of the testator to be divided under the will. The petition, then, does, to that extent at least, show a good cause of action against him. 33ut upon the averments in the petition, in relation to> the wrongful procurement of other notes and property belonging to the estate by the demurrant and two of the-defendants, for the purpose of defrauding the other children of the testator out of their just rights under the will, a further question is fairly raised by the demurrer, as to the-extent and proper limits of the power conferred upon the widow by the seventh item of the will.

It is claimed that the widow held the estate in trust for the benefit of all the children of the testator, and that therefore the transactions complained of are unwarranted, and that the parties who participated therein and profited thereby, having knowledge of the trust, must account.

Whether the widow be regarded strictly as a trustee or not, so far as yet disclosed in the case, is of little moment;, for the rights of innocent parties derived from the widow are not questioned, nor does it appear that she left an estate that could be subjected to any liability that might be-established against her as trustee. The will gave to her the testator’s estate for life, or widowhood, coupled with certain specified powers, with a limitation over of the remainder to the children of the testator. The material-point, then, is the determination of the extent, or proper-limits of these powers conferred by the will.

It is evident the testator intended to confer upon his wife ample power to obtain a support from his estate, and had such confidence in her that he was willing to empower her to manage, sell and dispose of his 'estate in any manner that, in her judgment, would promote her own welfare, and best subserve the interests of the estate.

Within the limits of the powers thus conferred, her discretion is conclusive. But is the power of sale and disposition itself unlimited ? Clearly not; for neither expressly nor by necessary implication does the testator confer upon his wife a power of disposition by will, and any possible implication to that effect is repelled by the disposition he has made himself of all his estate that may be left at the death of his wife.

Again, while he leaves it to her judgment to determine what disposition of his estate will be best for herself and the “heirs,” he does not authorize a disposition of the property among the “heirs” tor the mere purpose of discriminating-between them, and of defeating the manifest intent of the testator, to have all his children share alike in his estate. She may determine what disposition of the property will be “ best ” for them all alike; that is, she may dispose of the property, as held in Baxter v. Bowyer, supra, for her own benefit and that of the estate. Indeed, in the use of the word “ heirs ” in this connection, the testator seems to-have had in his mind the idea of an inheritance or estate to be left after the death of his wife, rather than that of the persons thereby designated; for, in the next item, he designates those to whom he gives the remainder óf his estate as his “ children.”

This construction gives full effect to the language of the-will giving to the wife the authority to dispose of the-estate, and harmonizes with the intention of the testator, clearly evinced throughout the will, that equality should be observed in the distribution of his property among his children. The contrary construction conflicts with the pervading spirit of the will, and the plain implication of the-eighth item of the will, that the estate, not required to pay debts, legacies, and the maintenance of the widow with the debts she might leave, should be equally divided among the children of the testator “share and share alike.”

Here we leave this branch of the case, with the construction we have given to the will to be applied to the facts as they shall be developed in the further progress of the case.

As to the remaining ground of demurrer, it is only necessary to say, that the mere failure of a petition to show that the action accrued within the period limited by statute, is not a good ground of demurrer. The statute of limitations becomes available on demurrer only when the petition shows affirmatively that the statutory period had elapsed before the action was commenced. When this does snot appear, the statute must be plead.

Other questions are discussed in argument, but they are not raised by the demurrer, and may be of no practical importance in the further progress of the case.

It follows that the demurrer must be overruled; and, to enable the parties to take such further action as they may be entitled to, the case will be remanded for further proceedings.

White, C. J., and McIlvaine and Stone, JJ., concurred.

Welch, J.,

dissented as follows: I do.not concur in the Erst proposition of the syllabus. I think it is, in a form, calculated to mislead as to the law in such cases. I think the “power” of the wife, under the will, should be stated .and held to be a power to manage, sell, and dispose of the property for her life support and for the benefit of the estate, and not, as therein stated, a “power to manage, sell, and dispose of the property in any manner that, in her judgment, will best promote her own welfare and benefit the estate.”  