
    No. 148.
    No. 149.
    Catharine Carder v. The Board of Commissioners of Fayette County.
    1. The widow’s election to take under a will does-not estop her from setting up her right as heir to the estate, or from contesting the will and controverting the validity of devises therein; and it is not the duty of the probate judge to advise her of her rights as such heir, at the time of her election.
    2. A county can take real estate by devise; and where the devise is made to the county by name, without limiting the uses of the property, it vests in the board of commissioners for the use of the county, and may be appropriated by them to anjr and all authorized county purposes.
    *3 Where there is a condition annexed to such devise, that the county will pay an annuity to the widow, it is immaterial to inquire into the constitutionality of a subsequent statute authorizing the county to levy a tax for the payment of the annuity, as it is not the inability of the county to raise means for future installments of the annuity, but its actual default of payment, that can work a forfeiture of the condition.
    4. Nor does the failure of the county to pay the costs of probate of the will, or to refund them to the executrix who had caused probate thereof to be made before the county officers knew of its existence, and who had never demanded xsayment, work a forfeiture of the condition that the county should “ pay all expenses of securing its title” to the land devised.
    Error to the court of common picas of Fayette county. Reserved in the district court.
    These cases were originally united in the court of common pleas, but were subsequently divided and separately docketed by order of the court. The facts sot forth and relied upon in each are the same, and the cases only differ in their prayers for relief. The facts are as follows:
    Peter Carder, the late husband of the plaintiff, died testate, May '18, 1863. His last will contains the following devise:
    “ I give and bequeath to the county of Fayette, State of Ohio, the farm known as the Shira farm, and so much of the Haymaker farm as lays on the east side of the Dcvalon road, the center of the road to be the line; provided the county pays to my beloved wife, Catharine Carder, the sum of seven hundred dollars, yearly, so long ■as she shall live, and pay all expenses incurred in securing their right and title to the same: if the county fail to comply to the above conditions, I give and bequeath the same to my beloved wife, Catharine Carder, to have and to hold the same, to her and her executors, administrators, and assigns, forever.”
    The plaintiff was by the will appointed executrix, and she made probate of the will, and qualified as such executrix, on the 5th of Juno, 1863.
    The deceased left no children, and the plaintiff, in case of intestacy, would have been sole heir to the real estate devised.
    At the time of making probate, she was advised by the probate judge with respect to her rights as widow, and duly elected to take under the will. The judge advised her, that if she refused to take the provision made for her in the will, she would be entitled to her dower estate in all the real estate of which her husband died seized, and to one-half of the first *four hundred dollars of his personal estate, and one-third of the residue; but if she elected to take under the will, she would be entitled to the provision made for her therein, and would be deprived of her dower in the real estate, and of her said distributive share of the personal estate. But the judge did not inform her of her rights as heir, and she made her election in ignorance of the fact that she was such heir, and in the belief that, in case of intestacy, she would only be entitled to dower in the premises. The judge gave no advice, and she asked none, as to the validity of the will, or as to the validity or effect of the devise to the county.
    The plaintiff, upon being subsequentlyadvised-of her legal rights as heir at law, resigned her office of executrix, and, on the 6th of February, 1864, filed her original petition, setting forth the facts aforesaid, and alleging the incapacity of her said husband to make a will; that the said county of Fayette had accepted and claimed the land so devised, but failed to pay the expenses of the probate of the will, and that she had paid them out of the assets of the estate. But the petition does not allege that any request had been made by her upon the defendant to refund the money, or that the defendant knew of the existence of the will at the time of its probate.
    In case No. 148 the prayer of the petitioner is, that the probate and record of the will may be set aside, and her election to take under it canceled; that an inquiry may be had as to her husband’s capacity to make a will, and that said supposed will may be set aside and held for naught.
    In case No. 149 the prayer is, that her election may be set aside; that the said devise to the county of Fayette may be held and- declared void; and that if the devise shall be held valid, the land may be declared forfeited by failure of the county to pay said expenses of probate.
    After the separation of thb cases, the defendant interposed a general demurrer in each.
    On final hearing the common pleas sustained both demurrers, and dismissed the petitions with costs.
    The plaintiff filed a petition in error in each case in the district court, and both were reserved for decision here.
    After the filing of the original petitions, and before the hearing *in the common pleas, the legislature passed the act of March 31, 1864 (61 Ohio L. 165), entitled “an act to authorize the board of commissioners of Fayette county .to levy a special tax.” The first section of this act provides-that “the said acceptance of said devise (by the commissioners of the county) is hereby ratified and confirmed; but this section shall not be held or construed to effect (affect) the validity of said will or devise.” The remaining sections of the act provide for and authorize the transfer of county funds, and the levying of county taxes in Fayette county, to enable the commissioners to pay the yearly installments to the plaintiff, as required in the will.
    
      Stanton & Allison, and Mills Gardner, for plaintiff:
    The devise to the county of Fayette is void, because, first, the devisee was incompetent to take; second, by reason of uncertainty.
    For the defendant it is claimed that the county is a corporation, and our statute of wills, authorizing a devise to any “person,” extends it to corporations. We answer:
    1. Every corporation must have a name by which it may be known as grantor and grantee, and to sue and be sued, and to do all legal acts. That in grants and conveyances, the name must be the same in siibstance as the true name. A. & A. on Corp., sec. 99.
    2. Corporations proper have only such powers as the act creating them confers, and are confined to the exercise of those expressly granted, and such incidental powers as are necessary to carry into effect those expressly conferred. Straus & Bro. v. Eagle Ins. Co., 5 Ohio St. 61; Commissioners of Hamilton County v. Mighels, 7 Ohio St. 115; Hopple v. Brown Township, 13 Ohio St. 324; White’s Bank of Buffalo v. Toledo Ins. Co., 12 Ohio St. 605; Treadwell v. Commissioners of Hancock County, 11 Ohio St. 190 ; Amer. Col. Soc. v. Gartrell, 23 Ga. 448; Lewis v. Lusky, 35 Miss. 401.
    3. “The action of municipal corporations is to be held strictly within the limits prescribed by statute.” 11 Ohio St. 190, and other authorities above; Kyle v. Nolin, 8 Ind. 34; Oakland *v. Carpenter, 13 Cal. 540; Argyle v. Dwinel, 29 Maine, 29; 15 N. H. 317; 1 Mass. 189. “In no state of the Union have these principles been adhered to with more unyielding tenacity than in Ohio.” Straus & Bro. v. Eagle Ins. Co., 5 Ohio St. 61. “And whatever is not given in unequivocal terms is withheld.” Moran et al. v. Commissioners of Miami County, 2 Black, 722.
    4. Counties are not corporations. Commissioners of Hamilton County v. Mighels, 7 Ohio St. 115; Boalt v. Commissioners of Williams County, 18 Ohio, 13; Hunter v. Commissioners of Mercer County, 10 Ohio St. 520; Hausacker v. Borden, 5 Cal. 288; Ward v. County of Hartford, 12 Conn. 406.
    5. “The board of county commissioners are not corporations proper.” 7 Ohio St. 115; 18 Ohio, 13; 1 Ohio St. 89. “ They have not even the corporate powers and liabilities of a municipal corporation.” 7 Ohio St. 118.
    6. They are but quasi corporations, with less powers and more restricted than corporations proper. 7 Ohio (pt. 1), 232; 7 Ohio St. 115; 11 Ohio St. 190; Angell & Ames, secs. 23, 24; 2 Kent’s Com. 278; 10 Ohio St. 520; 13 Ohio St. 324. “ In the exercise of their powers they can take nothing by implication, beyond the authority thus conferred by statute.” 13 Ohio St. 324.
    7. In Ohio this quasi corporation is the board of county commissioners, not the county. S. & C. Stat. 244, 372, 375; 11 Ohio St. 190; 18 Ohio, 23.
    It is otherwise in New York, Illinois, Texas, and some other states. 2 Abbott’s N. Y. Dig. 253; 1 Gillman, 567; Hart’s Dig., art. 206.
    “ It is only through the board of county commissioners that suits in favor of or against the county can be instituted.” State v. Piatt, 15 Ohio, 23.
    8. In Ohio even corporations proper can not take any devise un • less expressly authorized by the acts creating them. Walker’s Am. Law, 327, 349 ; 5 Ohio St. 61, and other cases above cited; 8 Watts, 291; 1 Scam. 178; 15 Barb. 139.
    9. The county of Fayette can not take by devise for any purpose ; neither can the commissioners. No law authorizes it to receive land by devise, and the statute of wills does not *authorize a devise to a county. It can only be made to a “person.”
    10. A county is not a “person ” in any sense. It is not a corporation. Quasi corporations are not deemed persons anywhere. Boalt v. Commissioners of Williams County, 18 Ohio, 16; Hausacker v. Borden, 5 Cal. 285; School Directors v. Carlisle Bank, 8 Watts, 291; Blair v. Worley, 1 Scam. 187.
    11. Although the commissioners are authorized to purchase for certain public uses, the term “ purchase ” does not authorize them to receive by devise. Although devisees are said to hold by purchase ; it is to distinguish it from descent, but as a grant of power to a corporation, either proper or quasi, to receive by devise, the simple power to purchase or receive by gift will not authorize them to take by devise. There must be something else to show that such was the indention of the legislature. King v. Rundle, 15 Barber, 139; McCarty v. Orphan Asylum, 9 Cowen, 437.
    12. Legislative constructions are against the power claimed for quasi corporations in Ohio, to take by devise, unless the power is expressly granted. We are aware that our courts have sustained devises to private charitable corporations; but quasi corporations never, unless they were specially authorized by statute. 3 Curw. 2262; Hopple v. Brown Township, 13 Ohio St. 324. The legislature have conferred the power upon township trustees, and withheld it from county commissioners. See also acts of 1865, p. 97.
    13. If the board of commissioners are authorized to take by devise, as quasi corporations, still this devise must fail, because it is to the county, and not to the board of commissioners. 8 Johns. 385; A. & A., sec. 99; Trustees, etc. v. Hail's Ex'rs, 4 Wheat. 1; 1 Jarm. on Wills, 330, 331; 4 Leigh, 327 ; 11 Ohio, 405.
    14. If the power to take by devise is conferred upon either the county or its commissioners, it is only for the public uses for which they are authorized to purchase and hold real estate, and this devise i's void for not specifying some such public use. 3 Pet. 484; 4 Wheat. 1; 8 Johns. 422; 5 Iowa, 124; 4 Dana, 366; 9 Vesey, 399 ; 9 Howard, 55 ; 3 Leigh, 450; 9 Cowen, 451; 9 Johns. 73 ; 15 N. H. 317 ; 1 Mass. *189; 5 Har. & Johns. 392; 4 Kent’s Com. 508. The court can not presume that the commissioners accepted the devise for one of the public uses for which they are authorized to procure real estate.. This must affirmatively appear from their record. Phelan v. San Francisco, 6 Cal. 531; Rosenthal v. Madison P. R. Co., 10 Ind. 359.
    15. Bodies or associations, not incorporated, can not take by devise. 4 Wheat. 1; 1 Jarman, 330, 331; 4 Leigh, 327; 8 Johns. 385.
    16. The devise can not be sustained as a trust or charity, for no trust or charitable use is created or specified. Every trust or charitable devise must point out its benoficiai'ies, so that the court can know who are the proper persons to enforce it. If it does not, it is void. To enforce it, the devise must be made in trust and not directly to a corporation. 4 Kent’s Com. 508; 9 Cowen, 437; 6 Cowen, 292; 2 How. 187.
    17. If the board had power to take by devise, it is void for uncertainty. If it was designed as a conveyance in fee, for general purposes, neither the county nor board have power to take it for such purpose. If it was designed as a trust for public uses, it is not specified that it is a trust, or for what public uses it was intended. If it was designed for charitable uses, neither the county nor board can take it for such purpose. 4 Wheat. 1; 5 Iowa, 124; 4 Dana, 366; 2 Johns. Ch. 386; 6 Conn. 292; 9 Vesey, 399; 9 How. 55; 17 How. 369; 2 Penn. St. 460; 3 Leigh, 450; 8 Md. 557; 2 Ohio, 124; 8 Johns. 422; 15 N. H. 317; Story’s Eq., sec. 979.
    18. If the county can take by devise, they have no power to tako coupled with the conditions in this will. It is required to pay an annuity of §700 to the plaintiff during her life, and all expenses that shall be incurred in securing its right and title to tho same. What statute authorizes the assessment of taxes or payment of funds from the county treasury for such purpose ? For aught that appears, Or can be known, the annuity in the end may amount to more than the value of the land and its income.
    19. The act to ratify the acceptance of tho devise and to authorize tho commissioners of Fayette county to levy a tax to pay the plaintiff’s annuity, is unconstitutional and void. *Const. of Ohio, art. 13, sec. 1, art. 2, sees. 26, 28; Atkinson et al. v. The M. & C. R. R. Co., 15 Ohio St. 21; Kelley v. The State, 6 Ohio St. 270.
    20. Tho election of the widow does not prejudice her right as heir to claim the land attempted to bo devised to the county. Morris v. Burrows, 2 Atk. 629; 2 Story’s Eq., sec. 1085; City of Phila. v. Davis, 1 Wharton, 510; Hearle v. Greenbank, 3 Atk. 715; 1 Ves. 306, 492, 496; 8 Ves. 481; 13 Ves. 223; 1 Cox, 241; Boughton v. Boughton, 2 Ves. 15; Evants v. Strode, 11 Ohio, 480; McNaughton v. Harper, Id. 223; Edwards v. Morris, 1 Ohio, 531; Hunt v. Hauswanier, 8 Wheat. 212.
    
      M. M. Briggs and JR. A. Harrison, for defendant:
    1. The plaintiff does not, in either of her petitions, make a case entitling her to a final order setting aside her election to take under tho will.
    The statute (wills act, secs. 43, 44) clearly contemplates that the probate judge shall treat the will as a valid one (Waters v. Cullen, 2 Bradf. (Surrogate) 354); and, so treating it, he is required to explain its provisions, and to advise the widow what she, as widow, will get by and under it, and what tho law will give her as widow, notwithstanding this valid will, if she refuses to take under tho latter.
    
      In order to discharge his duty, the judge is not required, nor is it necessary for him, to make inquiries as to whom the property would, in case of intestacy, descend; for, he does not treat with nor advise the heir at law, hut the widow as such.
    
    The probate judge did all the statute required or authorized him to do. In the absence of averment to the contrary, it will be presumed that he, in all respects, did his duty. Piatt v. Piatt, 9 Ohio, 37; Lessee of Ward v. Barrows, 2 Ohio St. 241; Lessee of Coombs and Ewing v. Lane, 4 Id. 113; Davis et al. v. Davis, 11 Id. 386.
    The statement that the plaintiff made her election in total ignorance of her rights as heir at law,” does not entitle her to have that election set aside. The statement is not an allegation of a mistake of fact. The case made is, therefore, one asking relief from the consequences of an alleged ignorance *of the law. This can not avail her. She does not bring herself within any of the few recognized exceptions to the general rule on this subject Davis et al. v. Davis, 11 Ohio St. 385; Shotwell v. Murray, 1 Johns. Ch. 512; Lyon v. Richmond, 2 Id. 51; Storrs v. Barber, 6 Id. 170; Hunt v. Rousmainer’s Adm’r, 1 Peters, 1; Bank of the United States v. Daniel et al., 12 Id. 32; 1 Story’s Eq. Jurisp., secs. 111 and 137 inclusive.
    2. A county in Ohio is capable of taking or acquiring real estate for certain uses and purposes. A. & A. on Corp., secs. 23, 24, 145; 2 Kent’s Com., s. p. 275, 278, 279, 307, 310; 1 Bouv. Inst. 77; 1 Bouv. Law Dic. 318, 319, and authorities cited; People v. Assessors of Waterloo, 1 Hill, 620; Denton v. Jackson, 2 Johns. Ch. 325; Fourth District v. Wood, 13 Mass. 197; 10 Pick. 188; 18 Johns. 407; The Society, etc. v. Pawlett, 4 Pet. 501; Hamblett and wife v. Bennett, 6 Allen, 140; 1 Chase Stat. 502, sec. 2; S. & C. 1484, sec 8; Ib. 1441, see. 3; Ib. 244, sec. 17; Ib. 249, sec. 30.
    The capacity of a county in Ohio to hold real estate in feo is recognized and enforced in the following cases: Brown v. Manning, 6 Ohio, 305; Smith v. Hueston, Ib. 103; Cincinnati v. Hamilton County, 7 Ib. 88, part 1; Le Clerq v. Gallipolis, Ib. 220; McIntyre School v. Zanesville Manuf. Co., 9 Ib. 288; Williams v. First Presb. Society, 1 Ohio St. 478; Fulton v. Mehrenfield, 8 Ib. 440.
    The principle on which the above cases were decided has been recognized and applied in Massachusetts. The Inhabitants, etc. v. Miller, 12 Mass. 415; Inhabitants of Worcester v. Eaton, 2 Pick. 377; Thomas v. The Inhabitants of Marshfield, 13 Mass. 377; and by the Supreme Court of the United States. The Society, etc. v. Town of Pawlett, 4 Pet. 480.
    3. A county having that capacity, whatever may be its extent, the plaintiff’s election to take under the will containing the devise to “Payette county,” precludes prestops her from contesting the validity of that devise, on the ground that the lands so devised were not, by the terms of the will, devised for any special public use. Wills Act, secs. 43, 44; Hyde v. Baldwin, 17 Pick. 308; Smith v. Smith, 14 Gray, 533; White v. Brocaw, 14 Ohio St. 348; Glenn v. Fisher, 6 *Johns. Ch. 33; Thompson v. Carmichael’s Ex’rs,
    1 Sanford’s Ch. 387; Grover v. Kennon, 6 Mon. 635; Hayden v. Ewing’s Devisees, 1 B. Mon. 111; Gove v. Stevens, 1 Dana, 204; Andrew v. Billow, 3 Pick. 224.
    4. The county of Fayette being capable of taking and holding land for at least some purposes, if in the case in hand it had exceeded its powers, the sovereign power of the state could, alone, have questioned the validity of the devise on that ground. 7 Barr, 233; Silver Lake Bank v. North, 4 Johns. Ch. 370; Runyan v. Lessee of Coster, 14 Pet. 130; Vidal et al. v. Mayor, etc., 2 How. 127; Leazure v. Hillegas, 7 Serg. & Rawle, 319; A. & A. on Corp. 92; The Banks v. Poitiaux, 3 Rand. 136.
    5. “The Board of County Commissioners of Fayette County” is a competent devisee, and the devise in question is a good devise to said board.
    Such board is a corporation, and is therefore a person, within the meaning of section 5 of the wills act. S. & C. 243-245; 340, see. 223; Ohio v. Piatt et al., 15 Ohio, 15; Reynold’s Heirs v. Comm’rs of Stark Co., 5 Ib. 204; LeClerq v. Gallipolis, 7 Ib. 217, part 1; 1 Bouv. Inst. 78; Smith’s Com., sec. 544; A. & A. on Corp., sec. 177; U. S. v. Amedy, 11 Wheat. 412; People v. Utica Ins. Co., 15 Johns. 358; Mc Intyre v. Preston, 5 Gill. 63; Knox v. Protection Ins. Co., 9 Conn. 434.
    Such board is expressly empowered by several statutes to acquire and hold all kinds of property for the use of the county. 1 S. & C. 249, sec. 30; 2 Ib. 129, secs. 2, 7; Ib. 927, sec. 1; Ib. 929, sec. 29. See Vankirk v. Clark, 16 Serg. & Rawle, 290.
    The term “ purchase ” includes taking as devisee. 4 Kent’s Com. 415; A. & A. on Corp., sec. 17; 4 Bla. Com. 241.
    The plenary power of boards of county commissioners to dispose of land belonging to the county, is fully-recognized in Reynolds’ Heirs v. Comm’rs of Stark Co., 5 Ohio, 204.
    6. But it is objected that the devise is not to the board of commissioners of Fayette county, eo nomine, and therefore the board can not take and hold the title to the land for the use and benefit of the county. This objection will be decisively ^answered by the authorities in which the principle involved has been settled. Town of Pawlett v. Clarke, 9 Cranch, 292; Mayor, etc., of Reading, etc. v. Lane, Duke, 81; Same Case, cited in 13 Serg. & Rawle, 92 ; Smith v. Hueston, 6 Ohio, 101; Potter v. Chapin, 6 Paige, 649; Hornbeck’s Ex’r v. Am. Bible Soe., 2 Sandf. Ch. 133; State v. Piatt, 15 Ohio, 23; Trustees v. Zanesville C. & M. Co., 9 lb. 287 ; First Parish in Sutton v. Cole, 3 Pick. 232.
    7. Though the county, eo nomine, were incapable of taking the land devised, the board of commissioners of the county, having the capacity and power to take and hold land for the uses of the county, the title to the land is vested in the board for the uses of the county. Thomas v. Stevens and Maxwell’s Ex’rs, 4 Johns. Ch. 607; Hornbeck’s Ex’r v. Am. Bible Soc., 2 Sandf. Ch. 271; Banks v. Phelan, 4 Barb. 80; Ex’rs of Burr v. Smith et ah, 7 Vt. 241; Johnson et al. v. Mayne et al., 4 Iowa, 181, See, also, Duke, 81, and 1 Phillips’ Ev. 522, 523; 1 Story’s Eq. Jurisp., sec. 180; Vansant v. Roberts, 3 Md. 119; African Society v. Varrick, 13 Johns. 38; Smith’s Ex'rs v. Wyckoff, 3 Sandf. Ch. 77; Minot et al. v. B. A. & F. School, 7 Met. 416 ; President, etc. v. Norwood, 1 Busbee’s Eq. 65; Preachers’ Aid Society v. Rich, 45 Maine, 552; 2 Kent’s Com. 292.
    8. At the'utmost the was amere misnomer, which amounts to nothing-. Fosdick v. Village of Perrysburg, 14 Ohio St. 472.
    9. But it is objected that neither “the county of Fayette,” eo nomine, nor “the board of commissioners of Fayette county,” can take and hold the land devised, because no use is specified in the devise.
    
    The law prescribing the uses for which the property may be taken, held, and appropriated, is to be considered as a part of the grant or devise, precisely as if it were, in terms, incorporated in it. Winslow v. Cummings, 3 Cush. 364; Potter v. Chapin, 6 Paige, 649; Baker v. Bales, 16 Mass. 495; Hornbeck’s Ex’r v. Am. Bible Soc., 2 Sandf. Ch. 133; Evan. Asso. Appeal, 35 Penn. St. 321; Ex parte, The Penn. Iron Company, 7 Cowen, 540; The People v. Mauran, 5 Denio. 389; Farmers’ Loan & Trust Co. v. Curtis, 3 Seldon, 466; Chatauque Co. *Bank v. Risley, 5 Smith (N. Y.), 381; Humphreyville Copper Co. v. Stirling, 1 West. Law Jour. 126; 5 Gilman, 62.
    10. If neither Eayette county, eo nomine, nor the board of commissioners, are capable of taking the legal title to the land devised, the plaintiff, as heir at law of Peter Carder, holds such legal title in trust for “the county of Eayette,” the beneficiary designated by him. Bartlett et al. v. Nye et al., 4 Met. 380 ; Washburne v. Sewell et al., 9 Id. 282; Brown v. Kelsey et al., 2 Cush. 250; Winslow v. Cummings et al., 3 Id. 365; Johnson v. Mayne, 4 Iowa, 182; Am. Bible Soc. v. Wetmore, 17 Conn. 188, and the authorities there cited.
    11. Assuming the devise under consideration to bo a devise to “the county of Eayette,” or to “the board of county commissioners of Eayette county,” for public uses, we maintain that it falls within, and will be protected by, the well-established doctrines respecting devises for “ charitable uses."
    
    The uses for which a county may acquire lands are charitable, in the legal signification of that term. 2 Story’s Eq. Jurisp., sec. 1136 et seq; McIntire Poor School Fund v. Z. C. & M. Co., 9 Ohio, 287; Umroy’s Exr's v. Wooden et al., 1 Ohio St. 160; Williams v. First Pres. Church, Id. 479; Town of Hamden v. Rice, 24 Conn. 350; Vidal et al. v. Mayor of Phil., 2 How. 157; Tappan v. Deblois, 45 Maine, 122; Washburne v. Sewall, 9 Met. 280; Magill v. Brown, Brightly, 394.
    12. But whether the devise in question is or is not, technically, a “charity,” it is, confessedly, a devise for “public uses, and a donation or dedication of property to public uses stands on the same footing with charities, and will be uphold and supported upon the same principles; and whether for pious or public uses, an unincorporated association may take lands or chattels. Wright v. Zinn, 9 Barr, 437; Potter v. Chapin, 6 Paige, 649; Shotwell v. Mott, 2 Sandf. Ch. 46; Coggswell v. Pelton, 7 Johns. Ch. 292; Zimmerman v. Anders, 6 Watts & Serg. 220; Wright v. Methodist Church, 1 Hoff. Ch. 202 ; Ex’rs of Burr v. Smith et al., 7 Vt. 278; Evan. Asso. Appeal, 35 Penn. St. 316; Johnson et al. v. Mayne et al., 4 Iowa, 1825.
    13. The absence of all declaration of trust or use, in the *torms of the devise, does not prevent the application of the doctrine above stated. Baker v. Bales, 16 Mass. 495; Hornbeck’s Ex’r v. Am. Bible Soc., 2 Sandf. Ch. 133; Cleveland v. Hallett, 6 Cush. 403; The Evangelical Association Appeal, 35 Penn. St. 321.
    
      14. Whore a devise is made to an unincorporated society, for charitable or public uses, the court will, if necessary to sustain the devise, appoint a trustee. Lessee of Bryant et al. v. McCandless, 7 Ohio (pt. 2), 135 ; Umrey’s Ex’rs v. Wooden, 1 Ohio St. 160 ; Brown v. Kelsey et al., 2 Cush. 243; Preacher’s Aid Society v. Bich, 45 Maine, 552 ; Hornbeck v. American Bible Society, 2 Sandf. Ch. 133; Williams v. Williams, 4 Selden, 526 ; Washburne v. Sewell, 9 Met. 280.
    15. Where a devise is made to an association which is not authorized to take property at the time the devise is made, nor at the death of the testator, it will be sustained if the association is afterward empowered to take property by becoming incorporated, or by any legislative act. 6 Watts & Serg. 218; Ingles v. Trustees of Sailors’ Snug Harbor, 3 Pet. 99; Shotwell’s Ex’rs v. Mott et al., 2 Sandf. 46 : Mclntire P. S. F. v. Zanesville C. & M. Co., 9 Ohio, 287; Sanderson v. White et al., 18 Pick. 328; The Town of Pawlett v. Clark, 9 Cranch, 292.
    16. In passing the act of March 31, 1864 (61 Ohio L. 165), the legislature exercised the right or power recognized by Chancellor Kent (4 Kent’s Com. 7th ed. 308, note a ), and in Lessee of Bryant et al. v. MeCandless, 7 Ohio (pt. 2), 135; and violated no pro* vision of the constitution.
    17. We think there is nothing in the alleged forfeiture. Broadstreet v. Clark, 21 Pick. 389; Hogeboom v. Hall, 24 Wend. 150, Trewer v. Halstead, 23 Wend. 70.
   Welch, J.

There is clearly no case made for setting aside the widow’s election, on the ground that she was not sufficiently advised by the probate judge. The law only makes it the duty of the judge to advise her of the effect of such election upon her rights as widow. He is not bound, nor as j udge is he is authorized, to instruct her with regard to the validity of the will, or her rights as heir, in case the will should be set aside, *or its devises declared to be void. The probate judge seems to have said and done all the lawrequired of him in the case.

Whether there is a proper case for setting aside the plaintiff’s election on the ground of her ignorance of her rights, or mistake, may be a question of more difficulty.

But the view we take of the case renders both these questions immaterial.

We hold that the election of the widow to take under the will tdoes not estop her from contesting the will, denying the validity of its devises, or setting up her claims as heir. She can do all or either of these, without having her election set aside. Her right to elect is the creature of statutory law, and we must look to the statutes creating it, alone, for the estoppel it is to work. These statutes make her election to take under the will a bar to dower, and to her distributive part of the personal estate due to her as widow, and to nothing else. A contrary reading of the statutes would, in many instances, result in the greatest injustice to her. She is compelled to make an election, and is only allowed one year for that purpose. The heirs may contest the will, or not, at their discretion, and they are allowed two years in which to commence the contest. The widow must complete her election within one year, and the heir must begin his contest in two years. How can the widow know, at the time of making her election, whether there will be a contest? And if she could know that, must she, at her own peril, predetermine the rights of the parties thereto ? There would be no safety to her in such a construction of the law. She might validate the will by an election, and the heirs invalidate it by a contest. It would then seem to be a will as to her, and no will as to them. On the other hand, should she decide that the will was invalid, and would be set aside, and therefore decline to take under it, the will might ultimately be established, and she be made to lose all benefit, however great, of its provisions in her favor. Thus an election, which was intended for the benefit of the widow, would become a means to entrap her, and would render her right uncertain and impracticable. Such is not the law. If there is no valid will, there is no valid election, and of course no estoppel or bar. And it matters *not whether the invalidation takes place before or after the election, or at whose instance it takes place. It is only in the event that the document probated becomes or remains established as a valid “ will,’ that her election can have any effect whatever; and when such is the case, the effect of the election is confined to her rights as widow, and can not reach her rights as heir to property not effectually and legally disposed of by the will. The will and its devises and bequests to other persons, stand unaffected by her election, either to take or to refuse its provisions in her favor. The whole effect, in the one case, is to destroy her rights as widow, and in the other to destroy her rights as devisee or legatee, and in their place to give her the rights of the widow of an intestate.

Tho demurrer, therefore, in case No. 148, in which tho plaintiff asks for a contest of the will, and seeks to set it aside, was not well taken, and the judgment in that case must be reversed.

Tho principal question, however, and that mainly argued by counsel, arises in the other case: Can the devise to the county bo supported as a valid devise, vesting the title of the property in the county or in its commissioners? The plaintiff says it can not, substantially for three reasons: 1. Because a county or its commissioners have no power given thorn by law to take or hold real estate by devise; 2. Because the devise is to the county, eo nomine, and not to its corporate agent, the board of commissioners; 3. Be-, cause the will 'does not specify the uses to which tho property is to be appropriated.

Our wills act authorizes devises to be made “to anjperson.” A county, or, more properly, its board of commissioners, is a quasi corporation, and we see no good reason why it may not be regarded as a “ person,” within the meaning of this act. The term was evidently intended to be used in a broad sense, and to include every party that could safely, and without contravening the policy of our laws, be made the recipient of testamentary donation, whether of real or personal property. We have no statutes of mortmain in Ohio, and it has never been our policy to prohibit devises or bequests to corporations of any kind. We have as yet experienced no evils rendering *such legislation necessary; and I am not aware that, in any country, prohibitory laws of that nature have been made to apply to political or municipal corporations. The real recipients of bounties to such are the tax-payers of the municipality, a majority of whom, in most cases, are poor people. It is conceded, by counsel for plaintiff, that corporations proper, of all kinds, are “persons,” within the meaning of this act, and can have the benefit of its provisions equally with natural persons. Why, then, should the legislature thus discriminate in their favor, and against political corporations ? Surely the latter are as indispensable to tho well being of society, and as much in need of the bounties of the rich and liberal, as are many of the former.

By the act of March 3,1831 (S. & C. 1228), the commissioners arc authorized to receive donations of land, money, and other property, . . . and to appropriate the same ” to the payment of the expenses of erecting public buildings for the use of the county. If the word “ donations ” here is technically too narrow to include devises, it at least shows the animus of the legislature, and sheds light upon the meaning of the wills act. This act of 1831 was in force at the time of the passage of the wills act, and it is hardly supposable that the legislature, by the use of the words any person ” in the latter act, meant to exclude counties from the benefit of its provisions. Certainly no good reason is shown why they should so discriminate.

The county commissioners are, by various statutes, authorized to “purchase " real estate for the use of the county. S. & C. 1229, see. 2,249; see. 1. Every lawyer knows, that title by purchase is title by any means except descent, and, of course, includes title by devise. That the word purchase will have this original and technical meaning, when used in a statute, and not controlled by other statutes, or the general policy of the law, was expressly decided by this court, in American Bible Society v. Marshall et al., 15 Ohio St. 538. There is the total absence of any such policy, or counter legislation, and our laws, so far as they have gone, are in the contrary direction. The act of 1831 not only authorized donations of land to counties, but it contains, as do other statutes on *the same subject, stringent provisions, in cases where the land is not donated, for insuring its purchase at the lowest price. If the commissioners can acquire land at the 11 lowest bid ”—which may be one cent—why may they not acqnire it as a gift? And if as a gift, why not as a testamentary gift? No reason, outside of the supposed technical meaning of doubtful words, is attempted to be shown why they should not; and we think that we are only carrying out the spirit and policy of our laws, and are violating no sound and settled rules of construction, when we hold, as we do, that a county may take and hold real estate by devise; that it is a person,” within the meaning of the wills act, and may thus become a “ purchaser,” within the meaning of the acts authorizing counties to purchase real estate, or to take the same by gift.

But it is said that the devise is void, because it is to the county by name, and not to the commissioners of the county. We are unable to see any weight in this objection. The board of county commissioners is the body—the quasi corporation—in whom is vested by law the title of all the property of the county. In one sense they are the agents of the county, and in another sense they are the county itself. It is in this latter sense that they acquire, and hold in perpetuity, the title to its property. In this capacity they not only act for tho county, but also act as the county. A deviso to the county is a devise to the commissioners of the county, and vests tho title in them, for the uses of the county. The county, and the commissioners of the county, are often convertible terms. Tho statutes referred to often so use them, for while they provide for vesting the title of land in the commissioners, they speak of the land as “ belonging to the county.” The case seems perfectly analogous to those of devises to unincorporated churches, to parishioners, and to the poor of a hospital, where the title has always been held to vest in the parson, the church wardens, and the mayor and burgesses, respectively, for the use of the beneficiaries intended. In Trustees of Green Tp. v. Campbell et al., decided at the last term (but not yet reportod), this court held, that a grant to the legislature of the State of Ohio was a grant to the State of Ohio, and vested *title in the state. That was a stronger case than tho present, and fully warrants us in holding that a devise to the county vests the title in its commissioners.

It remains to inquire whether the devise is void because it designates no uses to which the property is to bo applied. A county can hold and use real estate only for certain specified public purposes— the support of the poor, the administration of justice, tho maintenance of local government, and the establishment and repair of roads and bridges. But is it necessary expressly to name these uses, or any of them, in a devise or grant to the county? If any are named, the land must be applied to them, and can not bo used for other lawful county purposes. But if the testator, or donor, intends the land donated to bo used for any and all legitimate and proper county purposes, is it necessary in the will or deed to say so in that form of words? Unsophisticated men would hardly think so. They would be apt to believe, as we do, that a designation and limitation of the uses to which the property may be applied, is found in the name and nature of the devisee or grantee. A devise to a county, or to the commissioners of a county, is a devise for any and all lawful county uses. Should the county authorities, after acceptance of the gift, undertake to apply the property to unlawful uses, it would be the business of the public, and not of the donor’s heirs, to interfere and prevent the perversion. What we have to do with now, is the power of the county to accept the gift. The subsequent use or abuse of it is á different thing, and does not belong to the present case.

This view of the ease renders it unnecessary to consider many of the questions argued by counsel as to public uses and charities. The legal title being in the commissioners, and there being no occasion for the appointment of a trustee, or the declaration of a trust in the heir, but few of these questions arise in the case. It also saves us the necessity of deciding the various constitutional questions, so ably argued by counsel, as to the validity and effect of the enabling act of March 31, 1864. If the capacity to take by devise already existed in the county, it would be out of the case to inquire into the power of the legislature to create the capacity by a ^retroactive law. The leading object of the act of March 31, 1864 (and perhaps that is its sole effect), seems to have been, not to grant the power to accept the property, but the power conveniently and profitably to enjoy and use it. With the enjoyment and use of the property, as has been said, we have now nothing to do. And with the ability of the county to raise means for payment of future installments of the annuity, the plaintiff has nothing to do. All that she can demand is, that they be paid as they fall due.

The position, that the property has become forfeited by the nonpayment of the expenses of probate, we suppose is not now seriously insisted upon. We think there was no failure to fulfill the conditions of the devise, such as would work a forfeiture. The will was probated before the county was advised of its existence, and it is not shown that any demand was made upon the county to refund the expenses of probate.

The judgment in case No. 148 will be reversed, and that cause will be remanded for further proceedings; and the judgment in case No. 149 will be affirmed.

Scott, C. J., and Day, White, and Brinkerhoee, JX, concurred. 
      
      Ante 11.
     