
    The Board of Trustees of the Ohio State University v. Folsom et al.
    
      Construction of will — Devise to Ohio State University — Devise over to children of two deceased brothers of testator, if held invalid — Proviso that devise-over shall be revoked, if testator's daughter shall ratify devise to University — Effect of such satis, faction on devise-over.
    
    Error to the Circuit Court of Pickaway county.
    The will of Henry F. Page, deceased, contained a devise to the Ohio State University to be a part of an endowment fund; and provided that if the devise to the University should fail or be held void for any cause, it should then go to the children of two of his deceased brothers. In a subsequent codicil, he fully empowered his daughter, Isabel, to ratify and confirm his bequest to the University; and further provided, that if she complies with this request, the devise over to the children of his deceased brothers “is revoked.’’ Tire testator died within a year from the making of the will, so that the devise to the University became invalid, by reason of the provisions of section 5915, Revised Statutes. The daughter executed the power given her by the will, by executing and delivering a deed for the property to the University. She has since deceased.
    Harrison, Olds <& Henderson, for plaintiffs in error.
    I. The plaintiffs were not the heirs of Henry F. Page, and can take nothing by descent from him.
    
      
      ii. It was not the intention of the testator to give anything unconditionally to the plaintiffs.
    The intention of the testator in making a conditional and contingent devise to the plaintiffs, is distinctly and explicitly declared in his first codicil. He there says:
    “The object and intention of the devise in my will to the children of George Folsom, deceased, and to the children of Charles Folsom, was .that, in case of my death within a year from the date of my will and the consequent failure of the bequest and devise to the Ohio State University, the said children should take the property, but not that they should have the same in any other event.”
    Two things, therefore, under the original will, must happen before said children could take the property: (1) The testator should die within a year from the date of his will; and (2), the bequest and devise to the Ohio State University should fail in consequence thereof. If the devise should not fail in consequence of his death within that time, then said children should not have the property.
    In said codicil, the testator further says : “I now provide and declare that my said daughter is fully authorized and empowered to ratify and confirm ¿aid devise and bequest to the said University in case of my death within a year from the date of said will, and she is desired and requested by me to do so. In case she complies with this request, the devise and bequest to the said children of George Folsom and Charles Folsom are hereby revoked. ’ ’
    Now, the testator did die within a year from the date of said will, and his said daughter did comply with his request that she should ratify and confirm said devise and bequest to the said University, and so the devises and bequests to said children were revoked.
    It is plain that the devise to the children of the brothers pf the testator merely vested in them a right to a future freehold upon .the happening of an uncertain event.
    The right was conferred by the will, and vested by the will of the testator, and vested at the instant of his death. The devisees held it as a vested right, but only such a right as the contingent and uncertain character of the devisee created. Moore v. littell, 41 -N. Y., 66; Ilennessy v. Patterson, 85 N. Y., 91,104. 2 Sugden on Powers, star p., 159.
    The devise to the children of the Folsoms’ was a contingent devise. The fee in remainder vested in the heir of the testator at his death, subject, however, to be divested in the event that she made a conveyance thereof to the University. Gilpin v. Williams, 25 Ohio St., 283.
    But whether the estate in remainder in fee devolved upon Isabel Page, or upon the children of the testator’s brother, it was subject to be divested immediately upon the conveyance of the estate by her to the University.
    III. The second item of the first codicil to the will, and the execution of the authority and power thereby conferred upon the testator’s daughter, revoked the devises and bequests in the will to the children of George Folsom and Charles Folsom, even if the deed of conveyance by the daughter of the estate to the University could not, for any reason, vest the title thereto in the University. The .said children, therefore, have not any interest in the property.- Price et al. v. Maxioell et al. 28 Pa. St., 23 ; Tupper v. Tupper, IK. & Johnson, 655; Onions v. Tyrer, 1 P. Wms., 343; 2 Vern., 741.
    
      An express revocation will prevail, though the object for which it was made fails, as being against public policy. Gossett v. Weatherly, 5 Jones’ Equity, 46. 1 Roll. Abr., 615.
    IV. The testator’s daughter being his only issue or lineal descendant, it was competent for him to authorize and empower her, in ease she chose to do so, to convey his property to the Ohio State University, after his decease, subject to the life estate of herself and the life estate of her mother therein, and to direct that in the event that she should, in the exercise of her discretion under the power, determine not to make such conveyance, the property should go to his collateral relations.
    Such a power may be created by deed or by will. 4 Kent’s Comm., star p.-319; 2 Washburn on Real Property, star p. 314; 1 Sugden on Powers, star. p. 118. No precise form nor technical words are necessary to the creation of a power. 1 Sugden, Powers, 173; 4 Kent’s Comm., 319; 2 Washburn, Real Property, 315; Borland v. Borland, 2 Barb., 80. Farwell on Powers, 377, et seq.
    
    The power given by Mr. Page to his daughter, was, both in its terms and legal effect, a mere naked power. It was not imperative upon her. She had an unlimited discretion whether she would exercise it or not. The power conferred, therefore, was not a power in the nature of a trust. Hence, it does not fall within the provision of section 5915. Attorney General v. Botoning, Wilmot, 23; Sugden on Powers, 392. Shelton v. Homer, 5 Met. (Mass)., 462; Sugden on Powers, (4th ed.), 357; Farwell on Powers, 160, 266, 267; 2 Story’s Eq. Jur., Section 1061; 1 Perry on Trusts, Section.248; Greenough v. Weeles, 10 Cu*sh., 571; Ear-well on Powers, 266; Bullir .Tardy, IVes. Jr., 279; Marlborough v. Godolphin, 2 Ves., 61.
    Miss Page, under the will and codicil, took both an estate for life and an added discretionary power to dispose of the property by conveying it in fee to the Ohio State University, subject to her life estate. Tomlinson v. Bighton, Salk 239 ; Anonymous, 3 Leon., 71 Liefe v. Saltingstone, 1 Mod., 189; 1 P. Wms., 171; Jackson v. Rodgers, 16 John., 587; Boioning v. Wherrin, 19 N. H., 985; Gilbert v. Chapin, 19 Conn., 342; Pennock’s Estate, 20 Penn. St., 268; Perry on Trusts, sec. 115; 2 Story’s Equity, sec. 1069; Young v. Martin, 2 Y. & C. Ch. Cas., 582; Richardson v. Inglesby, 13 Rich. Ex., 59; 2 Story Eq. Sec., 1069.
    It is perfectly clear that when there is a mere power of disposing, and that power is not executed, the Court cannot execute it. Broton v. Higgs 8 Ves. 570.
    In construing wills it is an universal rule that they are to be expounded favorably, and according to the intention of the devisor. Becker v. Becker, 3 Ohio, 147; 9 Ohio, 73 ; 17 Ohio, 250; 18 Ohio St., 247 ; 4 Ohio St., 333; 6 Ohio St., 563.
    In construing a will with codicil, the whole is to be taken together as parts of one instrument. Negley v. Gard, 20 Ohio, 310; Collier v. Collier, 3 Ohio St., 369 Boyle v. Boyle, 152 Penn. St., 108; 2 Story’s Equity Juris., See. 1069; 2 Redfield on Wills, 423; 2 Pomeroy’s Equity Juris., Sec. 1017; Lambe v. Eames, L. R. 6 Ch. App. 396; Stead v. Mellor 5 Ch. Div. ,¡225; In re Hutcheson v. Tennant, 8 Ch. Div., 540; Sugden on Property, 276; Hess v. Singler, 114 Mass., 56; Bryan v. Milby, 24 Atl., Rep. 333; Iluntv. Hunt, 11, Nev., 442-,Bulfery. Willingrod, 
      71 la., 620; Bills v. Bills, 80 la; Corby v. Corby 85 Mo., 371.
    The statute was enacted to restrict the right of any testator who has a child, or a descendant thereof, to devise his property to charitable uses. •The restriction is applicable only to that special enumerated class of cases. Therefore, the second item or provision of the first codicil to Mr. Page’s will is not in contravention of Sec. 5915, R. S., and hence is not invalid. Jones v. Habersham, 107 U. S. Rep., 174; Reynolds v. Bristow, 37 Ga., 283 ; Wetter v. Habersham, 60 Id., 193.
    It is, therefore, a bold claim for any one to make, that the Courts in the enforcement of a supposed public policy, can apply this limitation or restriction so as to prevent a testator from authorizing his only child and heir, she being of mature age, to grant, at her pleasure property of which he may be possessed at his death, for public educational purposes. For, such charities are highly favored in the law; and the Courts will carry out a grant or devise or bequest for a charitable purpose whenever they possibly can. McIntireA P. School v. Zanesville, 9 Ohio, 203; Zanesville Co. v. Zanesville, 20 Ohio, 483; Urmey’s Executors v. Wooden 1 Ohio St., 160; American Bible Society v. Marshall 15 Ohio St. 537; Carders. Commissioners of Fayette County, 16 Ohio St., 353; Mchtirels Admrs. v. City of Zanesville, 17 Ohio St. 352; Miller v. leachout, 24 Ohio St., 525; American Tract Society v.At'iocoter, 30 Ohio St., 77; Sanderson v. White, 8 Pickering, 328.; Rcvwley v. Umaltilla Co., 172.
    There is nothing in the law relative to charitable uses which is repugnant to our form of government. 2 Kent’s Com., star p. 285.
    
      Statutes prohibiting conveyances of lands by deed or will to a corporation, are termed statutes of mortmain or mortmain acts. 2 Bl. Com. 268; 2 Kent’s Com., 282.
    Neither the Ohio State University, nor the Board of Trustees of the Ohio State University, is a corporation. The University is a State institution, and the Board is an organized public agency, having such powers as are conferred upon the Trustees to accomplish the objects for which the institution was established. Neil v. Board of Trustees, etc., 34 Ohio St. 15.
    While, oh the one hand, the judiciary should be careful not to make its office of expounding statutes a cloak for the exercise of legislative power; on the other hand, it is equally bound not to stick in the mere letter of a law, but rather to seek for its reason and spirit, in the mischief that required a remedy, and the scope of the statute designed to effect it. Tracy v. Card, 2 Ohio St., 431; 3 Ohio St., 80; Hurd v. Robinson, 11 Ohio St., 232.
    .It has been decided, that a thing within the letter, is not within the statute, unless within its intention. Burgett v. Burgett, 1 Ohio St., 469; 10 Ohio, 513; 15 Ohio, 338; 1 Ohio St., 511; 3 Ohio St., 80, 10 Ohio St., 536; 14 Ohio St., 80; Greens. Kemp, 13 Mass., 518; Commonwealths. Weiher, 3 Met., 445; Malins s. Freeman, 4 Bing. N. C-, 395; Fdioards s. Duck, 4B. & A., 212; Fuller v. Hutchins, 10'Cal., 523; Dade s. Madison, 5 Leigh, 401; Wrecks v. Nicholas, 2 Strange, 1066; Gray v." Goockson, 16 East, 13; Jacks s. Turquand, L. R., 2H. L., 325; Burgess’s Case, 15 Ch. D., 507.
    The act of Henry VII., c. 4, which declared that gifts of goods and chattels in trust for the donor and in fraud of his creditors should be “void and of none effect,” was held to bé so only as to those who are prejudiced by the gift. Ridler v. Punter, Cro. Eliz., 291; Bessey v. Winhani, 6 W. B., 166; Phihpott v. St. George's Hospital, 6 H. L., 338; Dent v. Allcroft, 30 Beav., 335 ; Edwards v. Hall, 6 De G. M. & G., 84; Wallgrove v. Tebbs, 2 K. & J., 313 ; Rex v. Little Oogglesshall, 6 M. & S., 264; Rex v. Mursley, IT. R., 694,
    As the act is in derogation of the absolute right of all men to control the disposition of their own property, it should be strictly construed; SchnorFs Appeal, 17 P. F. Smith, 138; Bishop on the Written Laws, section 155.
    Inasmuch as the statute under examination is not in aid of the common law, but is restrictive of it, it should have a strict interpretation. Perin v. Oarey, 24 How., 465, 906.
    
      Booth c& Keating; II. P. Folsom and Millihin, Shotts <& Millihin, for defendants in error.
    Brief of Booth <& Keating and II. P. Folsom.
    
    In Ohio the right to make a will is not an inherent or natural right, nor is it granted by the constitution, but is derived entirely from the statute; hence every testamentary provision is void which contravenes the statute either in substance or in form. Evans v. Price, 118 111. 593 (1887); Brettun v. Fox, 100 Mass. 234 (1868); In re Walker, 110 Cal. 387 (L895).
    1. It is clear that the testator intended to give his wife and daughter a life estate in the lands mentioned in the petition.
    2. It is equally clear that he did not intend that either of them should have the fee in any event.
    
      3. It is also clear that he wished and intended to give to the Ohio State University an estate in remainder, if he could lawfully do so.
    4. It also appears conclusively that the testator wished and intended to give to his nephews and nieces an estate in remainder in the'Ohio Lands, if the gift to the University should fail by reason of his death within a year after making his will.
    5. Recognizing it as a possibility that his daughter would refuse to accept under the will and would attempt to set it aside, he provided in his last codicil that, in that event, the land described in the petition should go to his nephews and nieces, subject only to the life estate of his wife. So that, by his last testamentary act, he expressed in the most solemn manner his preference, wish and intention that his nephews and nieces should have the Ohio lands instead of his daughter.
    6. Therefore it was not in accordance with his wish and intention to die intestate as to any of his property. On the contrary by unusual expedients and numerous provisions he manifested his fixed intention not to die intestate.
    
      Collier v. Collier's Mors., 3 Ohio St., 369; Le Breton v. Cook, 107 Cal., 410. Schouler on Wills, Section 490; Carney v. Kain, 40 W. Va., 758; Zimmerman v. Rafer, 81 Md., 347; Nexo England Trust Co. v. Pitkin, 163 Mass., 506.
    During the last year of his life the testator had not the right or legal capacity to make a testamentary disposition of his property for an educational purpose; and, therefore, his devise to the University was absolutely void. Patton v. Patton, 39 Ohio St., 590; McKeown v. Officers, 6 N. Y. Supp. 201; 3 Greenleaf’s Cruise on Real Property, star page 14: Raioe v. Burton , Comb. 84.
    
      The University had not the legal capacity to take from the testator, because he died within a year after making his will; and the devise to it failed for that reason, also. Both the capacity to make the devise and the capacity to take it were equally affected by the testator’s death within the year, Stephenson v. Short, 92 N. Y. 433 (1883); 'High School v. Harrison, 12 W. N. C., 32;Ze Fevre v.LeFevre, 59 N..Y., 434, (1875); Starkweather v. Bible Society, 72 111., 50(1874); Peoples Trust Go. v. Smith, 82 Hun. 494 (1894); Fairchild v. Fdson, 77 Hun. 298 (1894).
    The testator could not confer upon his daughter any power or authority to do for him'that which he could not do directly; therefore, his attempt to authorize and empower her to ratify and confirm his void devise to the University was itself absolutely void.
    1. If the provision of Item II. of the first codicil, by which the testator attempted to authorize and empower his daughter to ratify and confirm the devise to the University, in its terms, is sufficient to create a precatory trust, or a power in trust, it is void because expressly prohibited by section 5915.
    2. Mr. Page could not, by will, confer upon another a valid or effectual naked power to vest a title in, or “devolve” an estate upon, a devisee to whom he could not make the testamentary gift directly.
    
      a.) A party who takes upon the execution of a power of appointment contained in a will, takes under and by virtue of the will, upon the well settled doctrine that a derivative power cannot be greater that the power whence it is derived. 4 Kents Com. star p. 318; Bouv. Diet., Vol. 2, p. 411; Anderson Diet, of Law, 795; 18 Am. & Eng. Eney. of Law, 878, 919; Williams Real Property, 130; Willard on Real Estate and Conveyances 268; Mels v. Lynch, 8 Bosw., 482; Goodill v. Brigham, IB. & P., 194; Doolittle v. Leiois, et al., 7 John. Ch., 45; Burleigh v. Clough, 52 N. H. 271; Matter of Stewart, 131 N. Y. 274; Martindale on Conveyances, see. 148; Crabh on Real Prop., sec. 1969; Fargo v. Squires, 29 N. Y. Supp., 648; Tilden v. Coceen et al., 130 N. Y., 29; Bead et al. v. Williams etal. Í25,N. Y., 560.
    (5.) Therefore, even if the testator attempted to confer a mere naked' power, the so called deed of “confirmation and ratification” was not effectual to vest any estate in the University. Campbell v. Leach, 2 Ambler, 747.
    The following principles relating to the confirmation of testamentary gifts are so well settled as to be recognized as legal maxims:
    1. The confirmor must have an interest in the estate with reference to which the confirmation operates.
    2. A necessary element of every confirmation of a testamentary gift is the release of some property right or estate by the confirmor.
    3. A confirmation may make good a voidable or defeasible estate, but cannot aid an estate which is void in law, Barton’s Digest of Legal Maxims, 68; Gilbert on Tenures, 69 1 Cooley’s Blackstone, Book 2, p. 324; 1 Devlin on Deeds, Section 17; People v. Law, 34 Barb., 511; 3 Com. Dig., 139; Branham v. Mayor, 24 Cal., 585; Tomlin’s Law Diet., Confirmation; In section 5915 Invalid means absolutely void; 11 Am. & Eng. Enc. of Law, 780; Black’s Law Diet., 642; Peoples Trust Go. v. Smith, 82 Hun., 484; Fairchild v. Edson, 77. Hun., 298.
    
      The scheme by which the testator attempted to make a devise to the University must fail, because it is a manifest attempt to evade the letter and spirit of the statute, and if successful would be a fraud upon the law. Endlichon Interpretation of Statutes, 138; O'Hara v. Dudley, 95 N. Y., 403; Duke of Marlborough v. Dari GodoVphin, 1 Eden, 417; Stickland v. Aldridge, 9 Ves., Jr., 516; Boson v. Statham, 1 Cox. Cas. in Eq., 16; Kearney v. Miss. Soc., 10 A b. N. C., 274; Leary’s Estate, 1 Tuck., 233.
    The gift over to the nephews and nieces did not fail because of the failure of the primary gift to the University, Bulla/rd v. Toion of Shirley, 12 L. R. A., 110; S. C., 153 Mass.,' 559 (1891), 2 Woerner’s Amr. Law of Admr., section 425; Tudor’s Charitable Trusts, 25; 2 Williams on Exr’s (Ed. of 1895) top p. 311; 1 Jar. on Wills, (Big. Ed. 1893) top p. 243; Warren v. Kudall, 4 K. & J., 603; Miltocoukee Prot. Home for the Aged v. Becher, 87 Wis., 409 (1894); 2 Williams’ Exrs., top p. 573 ; Fink v. Wilkes, 41 N. Y. Supp., 227.
    The execution and delivery of the deed of confirmation did not have the effect of revoking the devise to the nephews and nieces.
    1. The estate in remainder did not pass to the daughter by descent. 2 Sugden on Powers, star p. 159.
    2. An estate in remainder vested in the nephews and nieces immediately upon the death, of the testator. Linton v. Lay cock, 33 Ohio St., 134.
    A remainder after a life estate will vest notwithstanding’ a power of disposal given to the life tenant.' Gandler v. Dunkle, 4 Watts, 143; Ackerman v. Gorton, 67 N. Y., 63
    
      3. The eondi tional revocation did not take effect, because it was expressly made to depend upon the exercise of a void power.
    The vasted estate in remainder, which became vested in the nephews and nieces upon the testator’s death, could not be divested except by some one of the recognized modes of revoking testamentary gifts. The testator might have revoked his devise to them either :
    1. By destroying his will.
    2. By a subsequent lawful disposition of the same property, by a devise so inconsistent with the original gift as to necessarily imply an intention to revoke it.
    3. By a substantive, express, unconditional and independent clause in a subsequent will or codicil.
    4. By a conditional clause in a subseqnent will or codicil in which the intention was expressly or by necessary implication made to depend upon the accomplishment of some lawful and possible design.
    He did neither.
    As the testator’s intention, so far as it is lawful and its fulfillment possible, is the controlling consideration in the interpretation of wills. Courts do not infer an intention to revoke where the substituted or inconsistent gift cannot take effect; 1 Redf. on Wills, star p. 343; Conrad v. Long, 33 Mich., 78; DoioerY. Seeds, 28 W. Va., 133; Appeal of Luthern Congregation, 133 Pa. St., 32; Sloan’s Appeal, 168 Pa., St., 422.
    As the act of Isabel Page was ineffectual to accomplish the sole purpose for which the testator attempted to confer the power, it did not operate to deprive other devisees of their rights under the will. Austin v. Oaks, 117 N. Y,, 578; Collier v. 
      Collier's Exrs. 3 Ohio St., 369; The Earl llehester, ex parte, 7 Ves. Jr., 348; Piper v. Moulton, 72 Me., 155; Shattuch v. Hastings, 89 Mass., 23; Sheppard’s Touchstone, 129; Viele v. Keeler, 129 N. Y., 190; 1 Lomax Exrs., 44; Kennedy s. Hay, 105 N. Y., 137;' Mendenhall’s Appeal, 124 Pa. St., 387; Pringles. McPherson, 1 S. Car., 656; Churchill s. Churchill, L. R. 5 Eq. Cas., 44; 2 Williams Exrs., 573; Altrochv. Vandenburgh, 25 N. Y. Supp., 851; Warren s. Budall, 4 K. & J., 603.
    But how could he confer upon her such right, even if the statute did not forbid?
    1. Either, indirectly, by dying intestate, and thus permitting the title to pass to her by operation of law.
    2. By devising the fee to her.
    Mr. Page did neither.
    Our answer to the proposition above quoted is two fold:
    1. The statute does not permit, but, on the contrary, expressly prohibits such an act.
    2. The testator did not vest the title in his daughter.
    
    The validity of the authority which Mr. Page attempted to confer does not depend upon whether or not it is a naked power. The petition calls it a ‘‘pretended power and trust,” the answer of the defendant calls it a “power and trust.” Washburn Real Property, Vol. 1, p. 718; Hunt s. Bousmanier, 8 Wheat., 207; 2 Mason, 244.
    The individual defendants in error have the right to assert the invalidity of the devise to the University, and to deny that the pretended confirmation by Isabel Page of the void gift deprived them of an estate in remainder. E’olsom s. Haas et al., 9 OhioC. C., 473; Stephensons. Short, 92N. Y., 433; Harris v. Slaght, 46 Barb., 470; Harris v. American Bible Society, 2 Abb. Dec., 316; Kearney v. Missionmy Society of St. Paul the Apostle, 10 Abb. N. C., 274; McKeown v. Officer, 6N. Y. Supp., 201; Church of Redemption v. Grace Church, 68 N. Y., 570; Jones v. Habersham, 107 U. S., 174; Woodbury v. Berry, 18 Ohio St., 456; Burner v. Briggs, 39 Ohio St., 478; Wilcox v. Nolze, 34 Ohio St., 520; Sedg. on Statutes and Const. Law, (2ed) 326; Brower v. Hunt, 18 Ohio St., 312; Ash v. Ash, •9 Ohio St., 383; Bane v. Wick, 14 Ohio St., 505; Sturgis v. ,Ewing, 18 111., 184; Tiedeman’s Limitations of Police Power, 342; American Bible Society v. Marshall, 15 Ohio St., 537; McClain v. Wade, 41 Pa. St., 269; Demhitz on Land Titles, 578.
    But independent of the English statutes, and following in the same line of policy, many states have prohibited or restricted devises of land to corporations.
    New York, R. S., 8th ed., 2545, section 3. New York Act of 1848, e. 319, section 6. New York Act of 1860, c. 360. California, Civ. Code, sections 1275, 1313. Illinois, 1889, P. L., 94. Kentucky, 1887, G. S., 143, section 3. Indiana, 1888, R. S., section 3434a. Michigan, 1882, Am. Stats., section 4586. Wisconsin, 1889, Am. Stats., section 2061. Georgia, 1882, Code, section 2419. Ohio, 1890, 'R. S., section 5915. Pennsylvania Act of 1855. Tiffany & Bullard ,on Trust, p. 124. Muckleston v. Broion, 6 Yes., 52; 2 Redf. on Wills, 511; 1 Jarman, on wills (5th Ed. Bigelow,) 219.
    Mortmain statutes are founded upon the same policy as the rule against perpetuities. Shelford on Mortmain, p. 24. Tudor’s Charitable Trusts (3d Ed., 1889,) 372. Carter y. Reddich, 32 Ohio St., 1.
    
      We'do not claim that there is a general public policy in Ohio against charities, but we do claim that section 5915 is founded upon the same policy as were the Statutes of Mortmain in England.
    Brief of Millikin, Shotts dé Millikin
    
    We claim that by the terms of the will of May 5th, 1891, the devise to the Ohio State University of the estate in remainder was prohibited by the Statute and was void, and that at the death of Henry F. Page the estate vested immediately and absolutely in the children of his two brothers, defendants in error. Patton v. Patton, 39 Ohio St., 590; 72 O. L., 3.
    The devise to the University being void, it is as if not written in the will. The estate given tó the Folsom heirs becomes a vested remainder at the testator’s death and subject to no contingency. The will gave them the estate in fee and absolutely subject only to the life estate of the widow and daughter. Martin v. Ferry, 111 N. Y., 106, 39 Ohio St., 597; Britten v. Fox, 100 Mass., 234; Doyle v. Doyle, 50 Ohio St., 345.
    We claim that the codicil of July 6th, 1891, is void in so far as it attempts to confirm the void devise and bequest to the University and to defeat the devise and bequest to the children of George and Charles Folsom. Braddish v. Gibbs, 3 John Ch., 550; 2 Hillyard Real Property, 566, sec. 51; Terrell v. Auchauer, 14 Ohio St., 98; Bouv. Law Diet., Vol. 2, page 337 ; Hillenv. Iselon et al., 144 N. Y. Ct. Ap., 365; The Duke of Marlborough v. The Earl of Godolphin, 1 Eden Rep., 281; lBouv. Law Diet., 302; 2 Story Eq. Jr., sec. 1193; American Bible Society v. Marshall, 15 Ohio St., 544 ; In the Matter of McGraw, 11 N. Y., 107; Chamberlain v. Chamberlain, 43 N. Y., 424; In 1st Redf. Wills, 18; Ash v. Ash, 9 Ohio St., 383 ; 2 Redfield Wills, 796, sec. 48. '
   By the Court.

It is quite clear that the children of the testator’s brothers can take nothing under the provisions of the will, as the fact — the making of a deed to the University by the testator’s daughter — has occurred, on which it was not to go to them, and they are not the testator’s heirs. It is not material what construction the law may place on this will as between the University and the heirs of the testator’s daughter; for the devise over in case the deed or ratification should not be made, is not made to depend upon the validity of the ratification in whatever form adopted, but on the fact only of its not being made.

The judgment of the circuit court is therefore reversed, and the petition of the plaintiffs beloio dis missed, on the facts conceded in the record.  