
    Common Pleas Court of Montgomery County.
    Charles E. Cotterman et al v. Pearl E. Heeter.
    
    Decided April 19, 1932.
    
      Scharrer, Scharrer, McCarthy & Hanagham and Daniel Nevins, for plaintiff.
    
      R. N. Brumbaugh and Alloman, Funkhouser & Murr, for defendant.
    
      
       Affirmed by the Court of Appeals.
    
   Snediker, J.

This action is brought to determine the rights and interests of the respective parties in a farm of 30 acres located in Perry township, this county. The plaintiffs are grandchildren of John Heeter, the former owner of this farm, who died testate on the 6th day of October, 1906, and the defendant is the surviving wife of his son, C. W. Heeter.

By his will John Heeter gave and bequeathed to his wife, Eliza Ann Heeter, all of his real and personal property “in fee simple during her natural life, with full control thereof and with full power to rent, sell, and convey all or any part thereof.” By Item 4 of his will he provided:

“I will and appoint my son C. W. Heeter as my executor to act without bond. After the death of my wife he shall, at or before the expiration of five years, dispose of all my personal property and real estate left by my wife, at either public or private sale, as he sees fit, and the most advantageous, and divide the proceeds thereof as follows: first giving my grandson (C. E. Cotterman) one-fourth of my entire estate; and to, second, my granddaughter (Ruth Ann Cotterman) one-fourth of the said estate; and, to, third, my son (C. W. Heeter) one-half of my entire estate.”

After the death of the testator the wife entered upon the enjoyment of her estate for life and so continued until the 21st day of August, 1912. Her son, C. W. Heeter, the husband of this defendant was the owner of a farm of 40 acres located in the same township, and it was determined that for that 40 acres his mother would pay him approximately $300.00 and deed him the 30-acre farm of which she was a life tenant. This was carried into effect on August .21, 1912, on which date Eliza A. Heeter executed a quitclaim deed of the 30 acres to C. W. Heeter; and in that deed Charles E. Cotterman and his wife and Ruth E. Smith and her husband joined. On the same day C. W. Heeter and his wife executed and delivered a warranty deed to Eliza A. Heeter for the 40 acres belonging, to him. The consideration in the quitclaim deed referred to was one dollar and other valuable consideration, and there was the same consideration, in the warranty deed from C. W. Heeter to his mother.

For some unknown reason C. W. Heeter on August 24, 1912 made an affidavit with respect to the 30 acres in which he recites, among other things, the following:

“Said affiant further says that C- W.- Heeter, who was the son of said decedent inherited an undivided one-half part of said real estate (the 30 acres) ; that Charles E. Cotterman, who was a grandson of said- decedent, inherited an undivided one-fourth part of said decedent’s estate; that Ruth E. Smith, who was a granddaughter of said decedent, inherited an undivided one-fourth part of said decedent’s estate, all subject to the dower rights of Eliza A. Heeter, the widow.”

From what we have already recited with respect to the will of John Heeter it will be manifest that C. W. Heeter was entirely mistaken in making these statements. By that will, as we have stated, his mother was given a life estate in her husband’s farm, with the power of disposition; and whatever might remain of the estate of her husband after her death was to be sold and the proceeds divided; which, of course, is a bequest and not a devise to the several beneficiaries of the fund realized from the sale of the property after the death of Eliza A. Heeter.

C. W. Heeter died intestate on January 20, 1927, seized of the 30-acre tract which had been conveyed to him by the quitclaim deed of August 21, 1912. He left no children. This defendant survived him as widow. Eliza Ann Heeter died on November 25, 1930, testate, making equal division of her property between these plaintiffs. Before she died, as far back as 1923, she sold the 40 acres which was conveyed to her by her son to Samuel Levi and his wife for $6500.00. All of this money but $100.00 she still had at her decease, deposited half in the Miami Savings & Loan Association and half in the Gem City Building & Loan Association.

The claim of the plaintiffs in this case is “that they are seized of an undivided one-half interest in the above described real estate (the 30 acres) as remaindermen and that the defendant has only a life estate in the undivided one-half interest in said real estate.”

It will be apparent from what we have already said that even if the 30 acres were still a part of the estate of John Heeter, the interests of these respective parties are not as stated in the petition.

What is the true situation here?

We are aware that the powers given to Eliza Ann Heeter by her husband’s will should be strictly construed and that it has been frequently held in Ohio that the power to sell is not a power to trade. But since the transaction between her and her son, C. W. Heeter, was mixed in its nature, cash as well as real estate passing, we are disposed to hold that when Eliza Ann Heeter made her deed to C. W. Heeter she was acting within her authority and the title which she received was such as the will gave her the power to bestow; in other words, that C. W. Heeter did receive a fee simple to the 30 acres so conveyed by his mother. While he at the same time had an interest in the proceeds of the sale had it remained in the possession of Eliza Ann Heeter until the time of her death, yet since the right to that, although vested, might have been divested by her conveyance to some other person, we do not think there is any necessity of confusion on account of that interest. This 30 acres came to C. W. Heeter by purchase. He gave value for it; he did not in any sense acquire it by descent, devise, will or deed of gift. When he died it would descend, pass to, and vest, under the provisions of Section 8574, General Code, in this defendant, Pearl E. Heeter, who was his relict.

Only in order to make more clear our understanding of the facts submitted to us in this case, we must state that it is our opinion that the farm of 40 acres which was conveyed by C. W. Heeter to his mother personally did in fact then and there belong to the estate of John Heeter, and that when she sold it to Levi and his wife the money realized therefrom also remained a part of his estate subject to the provisions of his will. In exercising the power of sale given to her by her husband’s will, Eliza Ann Heeter could not secure any gain to herself individually which would negative her husband’s will. When, then, Eliza Ann Heeter undertook by her will to leave the building association stock to these plaintiffs, she had no right to do so. The interests of these plaintiffs and of this defendant in the two certificates of the building associations are governed by the provisions of the will of John Heeter. If the unconsumed remainder of John Heeter’s estate vested in his beneficiaries at the time of his death, and we think it did, then this defendant is entitled to take whatever provision that will makes for C. W. Heeter.

The entry which is drawn should be limited to the issues found in the pleadings. .  