
    (Montgomery County Court of Common Pleas)
    FLORA ARCHER et al. v. WILLIAM BROCKSCHMIDT.
    
      Ohio application of rule in Shelley’s case —Effect of final order, directing a deed for a larger estate than sold under foreclosure —Rules governing proceedings to quiet title—
    (1.) A testator — A afon M. Peaslee — devised tracts of land to his sons in -fee simple; but later, in the sama instrument, added the following clause: “I hereby in explanation declare it to be my will that the parcels of land herein-before devised to my two sons Theodore and Edward,is to be to them respectively during their natural lives, but so that they nor either of them cannot in their life time dispose of the same for any longer period than during their respective lives, giving each of therri only a, life estate in the land so devised to them, and after their deaths, the property to be to their respective heirs at .law in fee simple.”
    The will was probated in 1837, before the abolishment in Ohio, of the rule in Shelley’s case in construction of wills— (1840.)
    —Held — That the rule in Shelley’s case did not apply ; and that-the devisees took only life estates.
    (2.) Under foreclosure proceedings a decree was rendered for sale of a life estate, and same was appraised, adver^ tised and sold as such, but the final order of the court directed a deed in fee simple to be delivered to the purchasei.
    Held — That the final order could not enlarge the estate directed to be sold by the decree;- and was, to that extent void.
    (3.) A life tenant cannot add to his estate by buying in the tax title.
    (4.) Proceedings to quiet title to one of the tracts above devised, were brought against “The unknown heirs of Edward A. Peaslee, deceased.” After decree quieting title was rendered, it eared that Peaslee was living.
    Held—That the decree was void, the statute only authorizing action against “unknown heirs of deceased persons;” and because parties were sued in the wrong “quality,” having taken title not as heirs of Edward A. Peaslee, but as devisees of Aaron M. Peaslee.
   DUSTIN, J.

This is an action in ejectment brought by Flora Archer and William Earl Peaslee, as children and heirs at law of Edward A. Peaslee,, deceased, against defendant, to recover possession of about twenty acres of land in Van Burén Township, adjoining the Lunatic Asylum, in this county. A jury was 'waived and the case submitted to the court. Both parties claim title through Aaron M. Peaslee, the grandfather of plaintiffs, who died testate in 1837, his will being admitted to probate in this county April 29, 1837.

The provisions of the will relating to the land in question are as follows: After making a devise in the first item of a certain tract, to his son Theo Peaslee, the second item provides:

“I devise to my son Edward A.Peaslee all the rest and residue of said tract of land as purchased of said Brown, and there being a site for a mill on the premises hereby devised to the said Edward, to be carried by the water of said branch, said Edward is to have the right as appurtenant to said tract, en tering on the premises before devised to said Theodore, (if need be) for the purpose of making a race &c., to conduct the water to á mill to be erected on his land; 'the whole to the said Edward and his heirs in fee simple.”

And in the conclusion of the will, immediately preceding the testatum clause, occurs the following:

“I hereby in explanation declare it tobe my will that'the parcels of land hereinbefore devised to my two sons Theodore and Edward, is to be to them respectively during their natural lives, but so that they nor either of them cannot in their lifetime dispose of the same for any longer period than during their respective lives, giving each of them only a life estate in the land so devised to them, and after their deaths, the property to be to their respective heirs at law in fee simple.” -

Under this provision plaintiffs claim title as remainder men, after the termination of the life estate of Edward A. Peaslee.

In 1850 Edward A. Peaslee executed a mortgage ou the premises in question to John Erhard Sohoenberger. In foreclosure of the same, a decree was entered for the sale of the life estate of Edward A. Peaslee, and same was so appraised at $175, advertised and sold for $140, but on confirmation of the sale, a deed in fee simple was ordered to the purchaser. S. M. Sullivan. The sale was March 29, 1851, confirmed May 9, 1851, and deed executed to S. M. Sullivan, assignee of J. W. Shank,' who had purchased t.he premises at a tax sale,for $6.53; the tax valuation being $523.

Sullivan made a deed in fee simple to Geo. Nauerth and he to John Jacob Dehn, and so the title progressed by deeds in fee simple to the defendant, who received a deed and entered into possession on July 8th, 1885.

August 7th, 1890, Brocksehmidt, in order to get a loan upon the premises, brought an action to quiet' his title against William A. Peaslee (brother of Edward A. Peaslee) and the unknown heirs of Edward A. Peaslee, deceased. Service was made by publication on all of the defendants, and in due course a deciee was entered in favor of the plaintiff, finding that he had the legal estate, and that none of the defendants had :.any estate, or was entitled to the possession in said premises or any part thereof, and quieting the title of plaintiff Brocksehmidt. Meantime, Edward A. Peaslee,'theu a bachelor, having-lost his property through the foreclosure proceedings, wandered away, and finally turned up in Fayette county, this state, where he settled in a small village balled Waterloo, P. O. Pancoastburg, and in 1866 married. In 1874 he was divorced from his wife by whom he had two children, the plaintiff, Flora Archer, and a son who died. In Jnly, 1874, he married again and in due course became the father of the plaintiffs William Earl Peaslee. and one other child who died.

Peaslee was an eccentric character, being a farmer, photographer, tinker and jack of all trades; but not very communicative. His widow knew little of his story, but among his effects were found papers leading to his identification as the long lost Edward A. Peaslee of Dayton. His photograph was also identified by a prominent citizen of Dayton, who knew him when he resided here, and saw him once, about ten or twelve years ago, when Peaslee was in this city on a brief visit.

So, it appears that at the time of the gr-oceeding to quiet title brought by rockschmidt, Peaslee was living. Plaintiffs claim that, under the last provision of the will of Aaron M. Peas-lee, they are remaindermen after the termination of the life estate of Edward A. Peaslee.

That although at the time of the probation of said will, the rule in Shelley’s ease prevailed in Ohio, that the last explanatory and limiting clause of the will,under the decisions of our Supreme Court, notably King v. Beck, 15 Ohio, 559, only a life estate was devised to Edward A., and the fee passed to his heirs at law, who have had the right of possession since 1893.

Defendant claims, 1st, under the foreclosure proceeding of Schoenberger v. Edward A. Peaslee, in which the final order of the court is that a deed in fee simple be delivered to the purchaser.

2nd, Under the auditor’s tax deed to Sullivan.

3rd. By open, notorious and adverse possession. for more than twenty one years, and

4th. That plaintiffs are estopped by the proceeding to quiet title brought by defendant in 1890.

Plaintiffs reply, 1st, that the final order of the court to the sheriff to make a deed in fee simple to the purchaser for the premises, was void; because it could not vary from the decree which was the life of the deed; that the property having been decreed to be and having been appraised, advertised and sold as the life estate, the title could not be enlarged by the entry of the court on confirmation and distribution.

2nd. That Sullivan being in the shoes of Edward A. Peaslee as a life tenant, and thereby bound to pay the. taxes, and redeem the land if sold’ therefor, could not add to his estate by buying in the tax title.

3rd. That the statute of limitations did not run against plaintiffs, whose title did not accrue until 1893, and 4th. That the proceedings to quiet title do not estop plaintiffs: a. Because the statute only allows such proceeding's against the heirs of deceased persons, and Peaslee was not at that time deceased.

b. Because defendants are improperly described as the heirs of Edward A. Peaslee, whereas they claim title as devisees of Aaron M. Peaslee, insisting that the description should identify not only the persons but the quality of the claimant, in order to make the proceedings effective as res judicata.

The point is also made by the plaintiffs that under the answer of general denial, the proceedings to quiet title cannot be shown; that estoppel must be specially pleaded.

The case was tried January 11 to 13, 1897, but the questions raised were so numerous, important and interesting that considerable time has been given .to their consideraton.

Opinion

The first and leading question is —

What kind of an estate is devised ,to Edward A. Peaslee by the will of his ancestor, Aaron M, Peaslee.

The words used in connection with the deviso, and immediately following the description -of the premises, viz: “the whole to the said Edward and his heirs in fee simple” are clear enough, but what effect, if any, has the last explanatory clause in the will, viz: , “I here-, by in explanation declare it to be my’ will that the parcels of land hereinbefore devised to my two sons Theodore and Edward, is to be to them respectively during their natural lives, but so that they nor either of them .cannot in their life time dispose of the same for any longer period than during their respective lives,giving each of .them.only a life estate in the land so devised ioitbem, and after their deaths, the property to be in their respective heirs at law in fee simple.”

It is clear enough here also by this elaborate explanation and the reiterated words of restriction that it was the intention of the testator to devise only ,-a life estate to Edward and Theodore.

Polio wing the familiar rule in the .construction and interpretation of wills that the intention'of the testator is to govern, and the other rule, that where two clauses are at variance, the latter shall prevail, there would be no difficulty in arriving at a conclusion, but for the point urged by the defendant that the rule in Shelley’s case overrules the intention of the testator and makes this devise a fee simple and nothing else.

Volumes have been written on this celebrated rule, and decisions without number; and much learning has heen expended in its interpretation.

1 Coke, 104, states the rule as follows: “When the ancestor by any gift or conveyance, taketh an estate of freehold, in the same gift or conveyance an estate is limited, either mediately or immediately, to, his heirs in fee or in tail, the heirs are words of limitation of the estate, and not words of purchase."

Counsel in this case have used the following definition from 12 Ohio 471: “Where a freehold is limited to one for life, and by the same instrument the inheritance is limited either mediately or immediately to his heirs or to the heirs of his body, the first taker takes the whole estate either in fee simple or fee tail, and the words “heir or heirs -of his body” are words of limitation, and not words of purchase.”

This rule, as to the construction of wills, was abolished in Ohio, in 1840, Swans’ Statute, page 999; Revised Statutes, sec. 5968.

As the will in question was probated and took effect in 1837 it is not controlled by this statute, and the rule in Shelley’s case 'undoubtedly prevailed at that time.

The Supreme Court of Ohio has recognized the rule, and applied it strictly ta> 'deeds; not so strictly to wills. ■

In King v. Beck, 15 Ohio, 559, a fading case on the subject in this state, ¿7, says;

"In the construction of wills the intention of the testator must govern if it he not unlawful or inconsistent with the rules of law. The control over intention, by the rules of law, applies not to the j construction of words, but the nature of j the estate. A testator may use such j words as he may please to convey his intention: and such intention, if clearly manifested, will be carried, into effect, if it be not unlawful, and does not create an estate forbidden by law.”
“The rule in Shelley’s case is not a rule of construction, but a law of property. It is not designed to give a meaning to words, but to fix the nature and quantity of a.n estate. If the estate fur life,created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelley’s case vests the entire fee in the first devise or donee. The testator may use the word “heir,” and take it without its usual legal sense, if he employ words respecting it to show that he did not use it in its ordinary legal sense, or if the plain intention manifested in the will shows; that it was not employed in its usual legal sense. A mere presumed Intention will not control its legal signification and operation'; but with words of explanation, showing the manifest intent of the testator, it can be made a word of purchase. If, where the - word “heir” is used, there be superadded words of limitation, establishing a new succession, the first donee or devisee would take but a life estate. The expressed intent, then,of the testator, will affix the meaning to the word “heir it is said a mere implication will not.”

Judge Read seems not to have held In high esteem éither the "entailment of real estate,or the rule in Shelley’s case. Of the former he says “That was only a family law in Wngland designed to. build'up families, cheat creditors, and prevent forfeitures; and is in no wise consistent with the spirit and genius of our own government and laws, or the habits and feelings of our people.” * * *

“Nor is there with us any disposition to strain a point to bring a case within the operation of the. rule in Shelly’s case, a rule which had its origin in feudal tenure, and was first-adopted to secure the lords the profits and perquisites incident to inheritances; and, as an additional reason that it was necessary to prevent an abeyance of the fee. It is at best a mere artificial technicality; and just í» proportion as it lacks reason, it appears to have won up<n the affections of "the profession-. In its simplicity it possesses- some sense,and to that extent we have .adopted it as a rule ot property in Ohio. But it is tfte high and imperative duty of this court to conform its judicial decisions, where we attempt to walk by the light of precedent from another country,, to t&e nature of our government and free institutions.” .

“Throwing- aside,then, the court continues, “all presumptions in favor of estates ta.il, and all. peculiar affection for the rule in Shelley’s ease, and attempting to arrive al the intention from the language employed and the nature of the devises contained in the will,, what must we say was the intention of the testator?'

The will in that ease reads as follows:-

“If it so pleases God, that at the time-of my decease, I should be without any lawful heir or heirs, born in wedlock, in such case T will and bequeath all the property I may be ' possessed of before my decease, to my brother Christian, without any reservation, to be used by him while he lives; and, if so please God, that, at the time of brother Christian’s decease, he should be possessed of a legal heir or heirs, born in wedlock, I then will and bequeath all and every kind of property which might be considered mine, in my lifetime, and of which the said Christian may be seized at the time of his decease, to such heir or heirs, and no other. But should I myself die without lawful heirs, and- also my brother Christian die without heirs born lawfully, as above stated, I then will what may be considered my share, after my brother’s decease, and not before, to my sister’s children, Ish and Cassell, in equal dividends, or shares, and not to be used by any of them until they come to the age allowed by law.”

The court analyzing and construing this will say:

“Now, here is an express estate for life, by the words of the will, to Christian, and nothing more, and then to his heir or heirs; and if none at the time of Christian’s death, to the children of Ish and Cassell. The limitation of the remainder over to the children of Ish and Cassell Is not to take place on the indefinite failure of issue of Christian King, but must vest at the instant of Christian’s death, or never. Now had the testator intended to devise all his property to Christian King, and his heirs, why limit over a contingent remainder to the children of Ish and Cassel? If he had intended to devise his whole estate in the first instance to Christian, why do so vain a thing as to limir a contingent remainder over tc> the children of Ish and Cassell? If he had intended to use the words ‘heir or heirs’ as words of limitation, he knew that the whole estate was vested at once in Christian, and, why, therefore, create the contingent remainder over? But it may be- said, he was ignorant of the rules of law. The presumption is that he knew the law, and that he employed the words ‘heir or heirs’ in such sense as would permit the reiraindir to vest on the happening of the specified coiitingency. ”

It has already been stated that the words “heir” or “heirs” may be treated as designatio personae, or as “child” or “children” if the manifest intent of the testator requires it.

To give effect, then, to each devise in this will, the express life estate to Christian and the contingent remainder to the children to fsh and Cassell, the words “heir or heirs’’must be read “child or chldren”. To adopt an opposite construction would be doing violence to the whole will.”

But counsel for defendant, with much force, draws a distinction between this will and tbe Peaslee will, claiming that the King will goes a step further than the Peaslee will, and provides for a limitation over, on tbe happening of a con tingency. and that it was on account of that provision,'as appears by the opinion of the court, that the will was held not to be within the Shelley rule. Whereas in the Peaslee will there is no such limitation ; and no direction given to the course of the estate beyond the general heirs of the first donee.

It is true the court dwells largely on the working out of this contingent remainder; .but, applying the principles laid down to the Peaslee will, how else cau we make effective the distinct provisions which prohibits Ed. A. Peaslee from miking any disposition of the property for a longer period than his own life and reiterate that in different forms, except by treating the word “heirs” as designatio personae.

It is true,as claimed by counsel for defendant, that there are high authorities holding that the rule is inexorable, and the word “heirs” is to be construed in its technical sense, no matter if the intention of the testator is plainly to the contrary. But that seems not to be the rule in Ohio.

King v. Beck is cited approvingly in Turley v. Turley, 11 Ohio St., ’ 182, where the court say that the rule in Shelley’s case is at best an artificial one, which in its practical application often defeats the real intentiou of the testator * * * * that it finds but little favor in this country, and ought not to be extended”and further ápeaks of the rule, being in King v. Beck, thus modified &c.

This case was decided more than fifty years ago, and has never been overruled, distinguished, questioned or in any way modified, and may. I think, be regarded as a settled law of the state on the subject of the rule in Shelley’s case as applied to the construction of wills. Again,as counsel for plaintiffs suggests, if it is the rule, and it is. that where a devise is grant-ted, but in a later clause in the will the devisee is given jus disponendi, the estate is thereby enlarged to a fee simple, why, by analogy should not the converse be true, viz: That where a devisee is granted in fee simple, but later in the will the jus disponendi is restricted, the fee is thereby restricted to a lesser estate?

Chiefly on the authority of that ease the court therefore holds that the Peaslee will does rot come within the Shelley rule, and that it devised a life estate to Edw. A Peaslee, with remainder to his heirs.

The next thing for consideration is the foreclosure case above referred to. Here the mortgage conveyed a fee simple estate. But. the court, in rendering the decree, doubtless took notice of the will, and decreed that the life-estate of Edw. A. Peaslee in the premises described be appraised, advertised and sold according to law. And tb’at was done. But the court, in the entry of distribution, ordered a deed to the purchaser, S. M. Sullivan, in fee simple.

Defendant claims that athough this final order of the court may have been erroneous, it is nevertheless good until set aside; that it cannot be collaterally impeached. And in this connection he further relies upon an old statute long since passed away, but then and for a short time hereafter in full force, which provided:

“That no action of ejectment- or other action for the recovery' of lands or tenements, shall be brought against any person claiming- under, or by virtue of any judicial sale, or any sale of forfeited or other lands for taxes, except within seven (7) years after open and notorious possession taken and continued by the defendant, the person or persons' under whom he may or shall claim.”

47 Ohio Laws pages 553 & 54. Passed March 22, 1849.

Plaintiffs respond that this final order of the court for distribution and a deed is not properly a decree at all; is not a finding upon the issues, or based upon any finding: and cannot and . does not vary,enlarge or moditfy the true findings and decree of the court in which the property was ordered to be sold; that the life of the deed is the decree proper; that the title flows from the decree, and cannot rise higher than its source; that the court cannot on distribution enlarge or diminish the title sold under a former decree in tbe case, and any effort to do so would be void.

And so it seems to this court. In this case the entry of confirmation was probably drawn pursuant to the usual form, and he use of the word “in fee simple” was probably an inadvertance, the attorney for the moment forgetting that the estate sold was not a fee simple (as usual')', but a life estate. But whether accidental or intentional, it could have no effect unless based upon a finding and' decree of the court. If such an order was or could be effective, it would be a gross injustice to the mortgagor, since his life-estate, which would have a lower appraisment, and fewer bidders and would sell for a lower price, could thereby be bought in cheaply, and the debtor wronged out of his fee simple for a song.

Joseph Hidy for Plaintiffs.

Young & Young, and McMahon & McMahon for Defendants.

In this view of the court, therefore, the quieting- statute-referred to would not come to’the aid of the defendants.

Next, of what avail was the auditor’s deed?

Tw'O' objections are made to it

1st. T'liat there are no presumptions in favor of it: that all.the steps necessary'to; make it valid must be shown, and’ t'liat the certificate of publication of the delinquent tax list is missing.

2nd’. That S. M. Sullivan having purchased' a life-estate at judicial sale, March' 29, 1851, sale confirmed May 9, 1851,stood in the shoes of the life tenant, had a right to possession, and was bound to pay the tax and redeem his estate or forfeit it, and that he could not enlarge his estate by buying in the tax title in July 1852. Douglass v. D'angerfield, 10 Ohio, 152.

Both of these objections seem to the court to oe good, although the proof of publication might possibly squeeze through under the certificate as to advertisement, on the auditoi’s books.

Again, defendant relies upon proof of open, notorious and adverse possession for more than twenty-one years.

If the view of tho court upon the title conveyed by the will be correct, then the statute of limitations will not avail, for the older one of the plaintiffs was not born until 1867, and Edw. A. Peaslee, the father, did not die until 1893. Hence there is no title by prescription.

Another claim is inserted here, and that is, that the proof shows that Edw. A. Peaslee liad another child, a son, who is now dead, and there being' no proof of his age at death, or that lie died without issne.plaintiffs do not show a clear right to che entire estate, and cannot recover.

There being no proof of his marriage, it is the opinion of the court that the presumption is that he died without issue.

But finally, defendant relies upon proceedings to quiet title, begun arid concluded by him in 1890.

Plaintiff’s objections to the sufficiency these proceedings as an estoppel have heretofore been briefly given.

They are:

1st.' That they were instituted against the unknown heirs of Edw. A. Peaslee deceased; Peaslee being then alive. No one is heir to the living, is a maxim of the common law, and none can be called such except, as we have seen heretofore, as designatio personae. And the statute providing'for such proceedings, sec. 5058, clearly States that:

“When an heir or devisee of a deceased person is a necessary party,and it appears by affidavit that bis name and residence are unknown to the plaintiff, proceeding's against him may be had without naming him,”&c.

2nd. That the defendants are not properly described, being designated as tlie heirs of Wm. A. Peaslee, whereas they should have been described as the devisees of Aaron M. Peasiew, for in that capacity lay their claim to the property, if they had any.

To, make a matter res judicata, four conditions must concur, viz:

1st: Identity to the subject matter,

2nd: Identity of the cause of action,

3rd: Identity of persons and parties, and

4th : Identity in the quality of the persons for or against whom the claim is made.

Hence proceedings against the right party in the wrong quality do not estop him in the right quality. “An heir, claiming as heir to his mother, is not estopped by matter operating- .as an estoppel upon him as heir of his father.’’ 21 Am. & Eng. Enc. Law. 138.

It seems to the court that both of these objections to the estopel proceedings are' well taken.. Peaslee was in esse at the time; and his children took title, if any, not as his heirs, but as his father’s devisees.

As to whether estoppel can be shown under general denial, the court is of the opinion that it must be pleaded, being new matter. And to that end defendant may have leave to amend if he so desires.

Upon tlie whole, therefore, the issues are found in favor of the plaintiffs, and a decree may he entered accordingly.

(Note) This case was affirmed on all points by the Circuit Court in June 1898.  