
    William H. Gilpin and wife v. Francis B. Williams and others.
    1. A testator devised certain lands to his daughter for life, with remainder after her death to her children, then unhorn, forever, without otherwise' disposing of the inheritance. Held, the reversion in fee descended to and vested in the heirs of the testator at his death, subject, however, to divest in the event that the devisee for life should die leaving children surviving her.
    2. The act of April 4, 1859, entitled “an act to provide for the sale or lease of estates in tail in certain cases,” and the acts supplemental thereto, passed March 30,1864, and April 13, 1865, include estates created before their passage, as well as estates created after their passage.
    3. The provisions of these statutes are in conflict with section 19 of article-1, and section 28 of article 2 of the constitution, in so far as their operation would authorize the sale, without the consent of the owners, of vested estates in remainder or reversion created before the passage of the acts.
    Appeal reserved in the District Court of Hamilton, -county.
    On the 15th of April, 1888, the last will and testament of 'Thomas "Williams was probated in Hamilton county, Ohio.
    The following are among the devises contained therein:
    “ Fourth. To my friend, Isaac G-. Burnet, and my son William Williams, and to the survivor of them, I will and be•queath all the real estate of which I may die possessed in trust for the uses and purposes herein specified: Eirst, that for the term of fifteen years from the first day of June, eighteen hundred and thirty-one, the said Isaac G. Burnet and William Williams, or the survivor of them, shall receive all the rents and profits of said real estate, and after the payment of the proper rates of insurance and the assessed taxes and necessary repairs, the remainder shall be distributed or re-ceived one-third to my wife Mary, and the other two-thirds to my eight children in equal portions as heirs at law, and if by any casualty the house on Main street should be con.sumed by fire, I authorize and empower the said Isaac G-. Burnet and William Williams, or the survivor of them, to ■cause a house to be again erected on the ground and tO' mortgage the lot and the rents of the building after it is ■erected to raise funds for that purpose. Second, after the expiration of the said term of fifteen years, the said Isaac 'G. Burnet and William Williams, or the survivor of them, ■shall surrender up the control of all my real estate and release the title hereby vested in them as herein directed, to ■wit: To my son William Williams, his heirs and assigns forever, one undivided eighth part; to my son .Thomas Williams, his heirs and assigns forever, one undivided eighth part; to my son Erancis Burdett-Williams,' his heirs and •assigns forever, one undivided eighth part; to my daughter Mary Ashburn during her natural life, and to her children ■after her death forever, one undivided eighth part; to my -daughter Rebecca Rusk during her natural life, and to her children after her death forever, one undivided eighth part; to my daughter Susan Elston during her natural life,, and to her children after her death forever, one undivided eighth part; to my daughter Catherine Mason "Williams' during her natural life, and to her children after her death forever, one undivided eighth part, and to my daughter Euretta "Williams during her natural life, and to her children after her death forever, one undivided eighth part; and if my wife Mary he in life at the expiration of the- aforesaid' term of fifteen years, the bequests and division as here pro-vided for, are to take effect subject to the right of dowei,. in the same manner as if this will had never been made and if any one of the before-named devisees should decease before the expiration of the said term of fifteen years without children, the distribution of such deceased devisees then shall be made to the surviving devisees.”
    The devisee Euretta afterward intermarried with William H. Gilpin.
    In July, 1869, Gilpin and wife filed their petition in the. Court of Common Pleas of Hamilton county against the-other heirs of Thomas Williams, under the act of April 4,-1859, entitled “an act to authorize the sale or lease of estates tail and estates for life in certain cases,” and the-acts supplemental thereto passed respectively March 30.,. 1864, and April 18, 1865, demanding the sale in fee-simple of the portion of real estate which came to Mrs. Gilpin, under the will of her father.
    Certain other parties who claimed assessment liens against-the property were also made defendants.
    The cause was afterward taken by appeal to the District Court, where it was reserved for decision here upon the-facts found by the District Court.
    The following are the facts so found, to wit:
    “That said plaintiff, Euretta Gilpin, is seized of an estate-for her natural life in the real estate and premises described-in the petition of plaintiffs filed in this action, with remainder to her children after her death in fee-simple, and in the event of her death without children or their descendants,, then to the heirs of her father, Thomas Williams, deceased,. in fee-simple; that said estate was created and conferred by the last will and testament of Thomas Williams, deceased, dated the 6th day of March, 1831, and proved and .admitted to record on the 15th day of April, 1833, a copy ■of which is attached to said petition ; that said Euretta Gil-pin has had no children and is about forty-seven years of ;age ; that said Euretta Gilpin, and said defendants, Francis 33. Williams, Catharine M. Cook, Geoi’ge T. Williams, Josephine Williams, Sarah Heath, Mary Covolt, Euretta -Swift, David W. Snider, Catherine Snider, William W. Rusk, Louis H. Rusk, George Rusk, Osceola Elston, George W. Elston, John E. Elston, Rebecca Elston, Rosetta Elston, Angeline Elston, Elizabeth Elston, Ann Eliza Elston, Thomas Q. Ashburn, William W. Ashburn, Charles R. Ashburn, Charlotte Penn, Frances S. Lilich, Hester Mary ■Carter, and Rebecca A. Ashburn are the heirs at law of said Thomas Williams, deceased, and are all the persons in -being who are interested in said estate in remainder; that :said real estate described in the petition and sought to be .sold in this proceeding is worth about forty-five thousand dollars; that said tract firstly in said petition described containing eighty-four acres of land more or less is situtate ■eight miles from the city of Cincinnati, is of thin soil, has .Si front of nearly one mile on the Colerain turnpike, and is well adapted for subdivision into lots for country residences; that it rents for $120 per year over and above the taxes :and no more ; that said tract of land secondly in said petition described, containing 3 40-100 acres, is situate on Walnut Hills, the front part thereof being within the city ■limits, and fronts on the north side of McMillan street, and is wholly unimproved, and is in the immediate neighborhood of some of the finest and most substantial private ■residences on Walnut Hills, and is very valuable for building lots by reason of its location and surroundings; that .said tract of laud lastly described in said petition is situate •on Woodburn avenue in the incorporated village of Wood-burn, on East Walnut Hills, is in a good neighborhood, and is valuable for lots for private residences; that it is broken •and of uneven surface, and the construction of streets and ■grading the lots would be attended with a large outlay of ■money; that to make said lot available, it is necessary that streets be built and grading done; that each of said lots on Walnut Hills is rented out for a cow pasture, and the tenant pays rent sufficient to pay the taxes and no more ; that said plaintiffs have never been able to rent said two lots for more than enough to pay the ordinary taxes ; that •an assessment has been levied on said last-mentioned lot by the village of Woodburn for improving Woodburn avenue in front of said premises, which assessment amounts to the sum of $430, with interest from October 1, 1867, and a penalty of five per cent., and is a lien on said real estate, and the contractor has instituted proceedings to sell said real estate to pay the same; that other improvements have been made on the streets abutting on said property, the amount of which has not yet been definitely ascertained, but which will become a charge on said land.
    “ And the court further find, on satisfactory proof adduced, that a sale of the said real estate and premises described in plaintiffs’ petition would be for the benefit of said plaintiff, Euretta Gilpin, the donee for life, and would do no substantial injury to those interested in remainder.
    “And it further appearing that the defendants above named, the heirs at law of Thomas Williams, deceased, do not consent to the sale of said real estate as prayed for; and the questions of law arising upon said pleadings and the facts and findings herein contained being important and difficult, on motion of the counsel for the said defendants, it is ordered that for the argument and determination of said questions this case is hereby reserved for decision in the Supreme Court of this state.”
    Hpon this state of facts, it is claimed by defendants that the above-named statutes can not operate so as to authorize the sale prayed for by plaintiffs.
    
      Caldwell, Coppock, $ Caldwell, for plaintiffs:
    1. The act of April 4, 1859, is not in conflict with section 19, article 1, of the constitution. It is almost identical with section 4 of article 8 of the constitution of 1802, under which the legislature frequently passed private acts authorizing a sale of property limited in the manner this property is. These acts were constitutional. Carroll v. Olmsted et al., 16 Ohio, 251. Indeed, the act of April 4, 1859, is far less-objectionable than the act passed on by the court in Carroll v. Olmsted.
    
    2. Section 28 of article 2 of the constitution does not affect this act.
    So far as the power to pass laws impairing the obligation-of contracts is concerned, it was the same when the legislature passed the act relating to the Olmsted estate as when it passed the act of April 4, 1859.
    The law under consideration is not one that impairs the-obligation of contracts. Carroll v. Olmsted, above cited. Indeed, it has no reference to contracts whatever.
    8. Is this statute objectionable as being retroactive ?
    In terms the statute is not retroactive. It has no reference to the past. It gives no relief for past wrongs or injuries. Its provisions all have reference to the future. It: provides a remedy to be hereafter administered by the-court when the facts justifying the relief are found to exist. This statute is remedial, purely remedial, both in its-terms and operation.
    By reason of the peculiar limitation of the estates, it is-perceived that a hardship and wrong may arise from surrounding circumstances. These circumstances are the-rapid and great changes in the value and relations of property. They imperatively demand a corresponding change in the use and occupancy of the property. They demand that the property, in order to be productive, or even to prevent it from becoming a burden, should be improved,, leased, or brought into the market. The wrong or hardship consists in the fact that the owners of one of the estates in the property can not, on account of infancy or disability, or will not, consent to the change demanded, and. tbe owner or owners of the other estate is greatly injured,, or their estate destroyed.
    Under these circumstances it is the duty of the legislature to interfere and provide a remedy. Every consideration of justice and equity demands it. "We do not think the legislature is prohibited by the constitution from passing laws to prevent such a wrong or mischief. Is it possible that because the estates in this property were created prior to the adoption of the present constitution that therefore the legislature can never enact a lawin reference to it, or can never pass a law to prevent or remedy an injury thereafter to arise between the owners of the estates ? If this rule was adopted, then we submit that, every law that might operate on real estate owned by a man at the time of the adoption of the present constitution, would be retroactive and unconstitutional. It is evident that such was-not the intention of the framers of our constitution, and that such a construction is not proper. Estep v. Hutchman, 14 Serg. & Rawle, 438; Norris v. Clymer, 2 Penn. 277; Ervin’s Appeal, 16 Penn. St. 256.
    The sale of the property provided for by this statute no-more interferes with or impairs vested rights than a sale in partition proceedings.
    The case of Rairden & Burnet v. Holden, Adm’r, etc., 15 Ohio St. 207, is directly in point.
    The court in that case adopted the rule laid down by Mr. Justice Story for determining whether a statute is retroactive or not. The rule is, that “ every statute which takes away or impairs vested rights, acquired under existing laws, or creates a new obligation, imposes a new duty,, or attaches a new disability, in respect to transactions or considerations already past, must fie deemed retroactive.”
    This rule includes two classes of statutes. The first class are such as take away or impair vested rights acquired under existing laws. This statute does not fall under the first class of statutes. It does not take away or impair vested rights.
    
      The other class of statutes included in the rule are such ■as create a new obligation, impose a new duty, or attach a mew disability, in respect to transactions or considerations already past.
    
    It is not every statute that creates a new obligation, imposes a new duty, or attaches a new disability, that falls under the rule, but only such as relate to past transactions or considerations. Those statutes which act on facts and transactions occurring after their passage, do not come within the rule. Clark v. Clark, 10 N. H. 380.
    If the statute of April 4, 1859 creates any new obligation, or imposes any new duty, it is in respect to transactions, facts, and circumstances occurring after its passage, and not those that were past. We think the statutes which properly come within this second class are those relating to contracts and agreements, and not statutes like the one under consideration ; yet even if it should be held to embrace statutes other than those affecting contracts and agreements, it can not, we think, be construed to include the statute under consideration, because, as above stated, it is a remedial statute, prospective both in its terms and operation.-
    Again, this statute was intended and has the effect to carry out the. intention of the testator rather than defeat it.
    We desire to refer the court to the rule on the question of the constitutionality of statutes as stated in Lehman v. McBride, 15 Ohio St. 573; Rich v. Flanders, 39 N. H. 304.
    
      Matthews, Ramsey § Matthews, for defendants:
    I. Our first proposition is, that the acts of April 4, 1859 (1 S. & O. 550); March 30,1864 (S. & S. 346); and April 13, 1865 (S. &.S. 347), by construction of law, do not authorize the sale of estates which had vested prior to their enactment.
    This is a question of construction — whether the acts referred to, properly interpreted, are to have a retrospective operation. Cooley’s Const. Lim. 370; Moore v. Darden, 2 Excheq. 22; Gilmore v. Shuter, 2 Jones, 108 ; 2 Show. 16 ; 
      Edmonds v. Lawley, 6 M. & W. 285; Moore v. Phillips, 7 M. & W. 536.
    The rule sustained by these authorities and by Sedgwick ■on Stat. and Const. Law, is that a statute will be construed to be prospective unless, on the face of the enactment, the intention is clear and positive that the legislature .meant it to operate retrospectively.
    Neither the act of 1859 nor that of 1864 contains language which requires a retroactive operation to be given to them.
    It will be observed, by reference to the language of the two statutes of 1859 and 1864, that the estates thereby authorized to be sold or leased, were such only as are cre.ated by a will, deed, or other instrument of writing; and that therefore they would not apply to such cases, as the present for instance, where one of the estates sought to be sold does not arise under the instrument creating the life estate, but arises by operation of law, being a reversion, expectant on the determination of a life estate, with a contingent remainder limited on an event which may never happen. This is apparent from the terms of sections 2 and 6 of the act of 1859, and section 1 of the act of 1864.
    The act of 1865 is a declaratory act, establishing a new construction for the acts of 1859 and 1864, so as to enlarge their operation, to embrace a different order of estates from those originally contemplated — such as are derived by operation of law. In introducing this change in the application of the previous acts, it speaks of such estates, of either description, as has been or may be created by will, etc., or has been or may be derived by descent. The use of the past tense, in this connection, unmistakably expresses the intent to give to the act of 1865 a retrospective effect. But we deny that it gives a similar effect to the previous acts of 1859 and 1864. The strict grammatical force of the words used does not go to that extent.
    The only idea necessarily involved in them is that the acts of 1859 and 1864 shall be interpreted to embrace estates of the designated description which have been created or derived prior to the passage of the act of 1865; and as the previous acts are assumed to have only a prospective operation, they are thus confined to such estates created or derived after their enactment, and previous to that of 1865. To extend the retrospect to the time prior to the passage of the original act, the words should have been“Aaci been,” and not “ has been.”
    
    II. If these acts are necessarily to be construed as operating on estates existing prior to their passage, they are-in violation of the constitution of the state.
    1. They are in conflict with article 2, section 28, of the constitution.
    When a statute takes away or impairs vested rights acquired under pre-existing laws, creates a new obligation, imposes a new duty, and attaches a new disability, it comes within the prohibition of the constitution. But it may not when purely remedial in its effect. Rairden v. Holden, 15 Ohio St. 207; The Society v. Wheeler, 2 Gallison, 139; Goshorn v. Purcell, 11 Ohio St. 641; Miller v. Hine, 13 Ohio St. 568; Cooley’s Const. Lim. 361, 369; Webster v. Cooper, 14 Howard, 488; Medford v. Learned, 16 Mass. 215 ; Richardson v. Monson, 23 Conn. 94. This latter case is in point as to the analogy between sales in partition, and the act under discussion; and also Earl of Clarendon v. Hornby, 1 P. Wms. 446 ; 4 Kent’s Com. 365.
    2. They also conflict with article 1, section 19, of the constitution.
    Upon this point the case of Carroll v. Olmsted’s Lessee, 16 Ohio, 251, cited by counsel for plaintiff', as conclusive-of their theory, we think, has no application. In that case the question was whether it was competent for the legislature to authorize a conveyance which should have the effect of barring an entail, and it was held that the-statutory conveyance by the trustees of Olmsted’s devisees, obtained by them, was good as their own deed, made to> operate by the legitimate application of legislative power, to bar the entail; and that without affecting, in any respect, any vested right or interest.
    
      A case more nearly in point, and which, we think, governs the present, is that of McCoy v. Grandy, 3 Ohio St. 463; and see Good v. Zercher, 12 Ohio, 368.
    The Pennsylvania cases cited by counsel for plaintiffs—Estep v. Hutchinson, 14 S. & R. 438, and Norris v. Clymer, 2 Barr, 277 — arose on special statutes, similar to that involved in Carroll v. Olmsted, 16 Ohio, 251. They have no possible application to the present case. Ervine’s Appeal, 16 Penn. St. 256; Cooley’s Const. Lim. 103; Powers v. Bergen, 6 N. Y. 358; Schoenberger v. School Directors, 32 Penn. St. 34; Palairet’s Appeal, 67 Penn. St. 479, and cases there cited. The conclusion from these authorities, is that the legislature has not constitutional competency to impose upon the estate of these defendants, the new and additional burden of a liability to be sold, on the application of the tenant for life, and for her benefit, without their consent.
    Upon this question the court is further referred to the note to Killam v. Killam, 1 Am. Law Reg. (N. S.) 23, and authorities there cited. Reeves v. Tr. of Wood County, 8 Ohio St. 333; Sedgwick Const. & Stat. Law, 177; Marshall v. King, 24 Miss. 85; Cooley’s Const. Lim. 359.
   McIlvaine, J.

In the first place, it is claimed by defendants that the statutes under which this proceeding is sought to be maintained, do not, by necessary construction, authorize such proceeding where the estates sought to be sold became vested before the passage of the acts.

It is admitted that the act of 1865 is retroactive by its terms; but it is claimed that this act merely prescribes the rule by which the act of 1859 must be construed : hence, the words “ has been created,” as contained in the act of 1865, do not refer to an estate created before the passage of the act of 1859. And if this construction be adopted, it is then claimed, that the act of 1859 does not authorize such proceeding where the estates were created before its passage; and therefore there was nolegislative authority for proceeding to order a sale in this case.

It is, no doubt, the duty of courts to construe statute® liberally, in order to save them from constitutional infirmities. We. think, however, that the legislature certainly intended to give the act of 1859 a retrospective as well as a prospective operation.

The first section provides, “ that it shall be competent for the Courts of Common Pleas, on application of the first donee in tail, or for life, to authorize the sale of entailed estates and estates for life with remainder over, when satisfied that the sale would be for the benefit of the applicant and do no substantial injury to the heirs in tail or others, in succession, reversion, or remainder.”

The terms here used are certainly broad enough to include estates created before its passage, and must be held to have that effect in all cases where the sale of such estates in invitum is within the scope of legislative power.

The next question which has engaged the attention of the court in -this case is: Have the heirs of Thomas Williams a vested right in the lands described in the petition ?'

The District Court has certified to us “ that the plaintiff, Euretta Gilpin, is seized of an estate for her natural life ” in the premises, “with remainder to her children after her death, in fee-simple, and in the event of her death without children or their descendants, then to the heirs of her father, Thomas Williams, deceased, in fee-simple.”

It is also certified “ that said estate was created and conferred by the last will and testament of Thomas Williams, deceased.” This will is before us, and by reference to it we find that the testator devised the whole of his real estate (including the lands described in the petition), to certain trustees for certain uses, and among others, that at the expiration of fifteen years from the 1st day of June, 1831, the trustees should “ surrender up the control of the real estate ” and “ release the title hereby vested in them ” as directed by the will, to wit, “to my daughter, Euretta Williams, during her natural life, and to her children after her death forever, one undivided eighth part.”

Now assuming, as we must do under the pleadings and the findings of the District Court, that the trustees have disposed of the legal title, which vested in them under the wiil, as directed by the will, and that the property described in the petition was conveyed by them, as and for the one-eighth part of the whole, to Euretta “for her natural life, and to her children after her death forever,” and the further fact being that Euretta now is and ever has-been childless, the question arises, what has become of the fee-simple title? Is it vested in any one ? If so, in whom?'

¥e need not stop to inquire whether or not the legal title to the fee passed to or remains in the trustees. If it be in them, they hold it in trust for the children of Euretta after her death, or in the event she dies without leaving children or their descendants, then in trust for the heirs of Thomas Williams. If the legal title were found to be in the trustees, the case would not be relieved of any difficulty, as the same-questions would then arise in relation to the equitable estate as otherwise arise in relation to the legal title to the inheritance. Indeed, the case has been prepared and presented upon the theory that the trustees have fully executed the trust and divested themselves of all title to the premises.

We shall therefore dispose of the case upon the theory, that the only estate in these lands which passed to the trustees, was an estate for the natural life of Eüretta, and remainder in contingency to her children — the contingency being that she will die leaving children surviving her.

The right, by means of which the real owner of the fee will eventually come into possession of this property as an estate of inheritance, is vested in some person or persons awaiting the event which will unite the right of property and the right of possession in the same person or persons. We do not believe it is in abeyance, or that it rests in nubibus. It -is clear that it is not in Euretta — her only title is to an estate for her natural life; nor in her children — she has none. It is not in the trustees, as we have assumed. The fee-simple title was in the testator until his death, and if it did not pass by his will to any devisee therein named, it either ceased to exist in any one, or it passed by way of descent to his heirs at law. In our opiuion, it descended to the heirs; subject, however, to be divested, by force of the will, in the event that Euretta shall die leaving children; but subsisting in the meantime in the heirs, for the purpose of drawing the possession to them in the event of her death without children. This right in the heirs is an estate in reversion. It is the residue of the whole estate as owned by their father not disposed of by his will. When the reversion takes place, the heirs will hold by virtue of the title which descended to them at the time of his death, and not by virtue of any new title acquired by purchase. And although their estate may divest upon the happening of an uncertain event, it is now, nevertheless, a vested right.

After much consideration upon this point, we are content to adopt the doctrine as stated by Mr. Fearne, in his work on Remainders, chapter 6, page 351, namely, “ that where a remainder of inheritance is limited in contingency by way of use, or by devise, the inheritance in the meantime, if not otherwise disposed of, remains in the grantor .and his heirs, or in the heirs of the testator, until the contingency happens to take it out of them.”

The rights of these defendants in this property being vested, and not mere expectancies or possibilities of reverter, they are, without doubt, entitled to the protection of those provisions of the constitution which guarantee the inviolability of private property.

We have already stated that the interests of the heirs of Thomas Williams in the reversion of this property must be regarded as vested rights or estates; and the record shows that they were created and vested before the passage of these statutes. The question therefore arises, whether the sale of these interests, without the consent of the owners, can be enforced under these statutes without violation of the rights of property as secured by the following provisions of the constitution. Section 19 of article 1 provides that “ private property shall ever be held inviolate, but subservient to the public welfare.” And section 28 of article 2 provides that “ the legislature shall have no power to pass .retroactive laws or laws impairing the obligation of contracts.” There is no pretense that such sale, at the instance of the tenant for life, will subserve the public welfare. This brings us to consider the extent to which private property and vested rights are subject to legislative control and disposition where no question of public welfare intervenes. The consideration of this question does» not involve an inquiry as to the power of the legislature to impose conditions upon the tenure of after-acquired property, or of its power to prevent the vesting of rights in the future. Neither is it necessary to ascertain the power of .the legislature over contingent estates where no present right has vested. There is a clear distinction between contingent estates which may vest, and vested estates which may be defeated, upon the happening of a future event. There are also other rights (so called) which do not rise to the dignity of estates at all, but are mere expectancies or •possibilities, such as those of heirs apparent, possibilities of reverter, etc. It may be admitted that the legislature may control these at its pleasure; but the question before us relates to vested estates in expectancy, although subject to be divested upon the happening of an uncertain future event.

Indeed, it is not claimed by the plaintiffs that private property or vested rights can be taken or divested at the will of the legislature, with or without compensation, except when needed for the public welfare, otherwise than through the administration of remedial laws. They do claim, however, that these statutes must be regarded as remedial laws, and nothing more. The correctness of this claim is the principal question remaining in the ease, as it must be admitted, on the other hand, that legislation, which affects remedies only, is not inhibited by the constitution. It is difficult to draw the line between statutes purely remedial, and therefore subject to legislative control, and those which are in some sort remedial, but at the same time so affect vested rights as to bring them within the constitutional inhibitions.

No one, however, doubts the power of the legislature to-1 subject private property to the satisfaction of fines and penalties assessed against the owner by way of punishment forerimes; nor to subject it to the payment of his debts, etc.. On the other hand, it is equally clear that the sale of one-person’s lands against his will, even under the form of judicial proceedings, in order that another person may enjoy his estate more profitably, would be a plain violation of private property; and a statute authorizing such proceedings-would not be within the scope of purely remedial laws. An attempt to sanction such sales by statute, whether prospective or retrospective in its operation, would be without constitutional warrant.

To enforce a sale in this case, as prayed for by plaintiffs, would be nothing more and nothing less than the appropriation of the estate of one person for the benefit of the-estate of another.

It is said in defense of this proceeding, that it only seeks-to change the estate of the reversioners in kind, and that when so changed it will remain to the same use. The suggestion is of no avail. The proceeding seeks to divest them of their estate in the land; and it is that estate, their property in the land itself, which is declared to be inviolate.

It is also claimed that these statutes furnish a remedy between tenants for life and remaindermen or reversioners, upon the same principle which authorizes partition as between tenants in common.

The right of partition has ever been an incident to such estates, and is based on the right, which each tenant in common has, to hold and enjoy his interest in severalty. Laws in relation to partition are purely remedial, and are used solely for the purpose of putting part owners into possession in severalty in accordance with their respective rights, unless such possession be impracticable, in which case a sale is ordered to the end that the proceeds, in lieu of the property itself, may be aparted among the owners. This is allowed for the reason that separate enjoyment by each of his own can not be otherwise effected.

But the relations, between tenant for life and those in remainder or reversion, are wholly dissimilar. As to the* mode and time of enjoyment, their estates are entirely separate and distinct. The possession or enjoyment by the-tenant for life of all his estate in the premises is not abridged or impaired by maintaining the title of remaindermen or' reversioners intact. There is no joint or common possession as between them, and no such remedy needed to give: them full enjoyment of their respective rights.

Again, it is claimed that the same principle of construction, upon which the sale in this case can be prohibited,, would render all sales, by guardians of infants and lunatics,, of their ward’s lands, illegal and void. Not so. Jus disponendi is an incident to the absolute ownership of property. And in cases where such owner is incompetent in fact and in law to exercise the control and disposition of his property, by reason of infancy or lunacy, a sale made by his-guardian, under authority of law, can not be regarded as made in invitum, but as made with the consent of the owner,, acting through a trustee thereunto duly authorized.

It is also insisted upon by the plaintiffs, that the questions made in this case have been settled against the claim of the defendants, and in favor of the validity of such sales, by a decision of this court rendered in Carroll v. Olmsted, 16 Ohio, 251.

The holding in that case was, in effect, that the legislature may bar an entailment. The legislature, at the instance and for the benefit of the first donees in tail, had authorized by a special act (under the old constitution) the' sale of entailed property and a conveyance of the same to-purchasers as an absolute estate in fee-simple. The sale- and conveyance were accordingly made during the lives of the first donees. After their deaths, their heirs, to whom the estate had been limited by the entailment, and who had been born before the sale and conveyance, brought their action to recover the property from the purchaser.

The decision in the case was made upon a question of evidence, but its effect undoubtedly was to sustain the validity of the special act of the legislature, as against the claim of the issue in tail. "We entertain no doubt of the correctness of this decision. There is no principle better settled than that the expectation of an heir presumptive is not a vested right, but a mere possibility. It is not an estate in property, and can be neither transferred or released. Upon this principle it is held that the laws of descent may be changed at the pleasure of the legislature, as to all estates not already cast upon the heir by the death of an ancestor. It is upon this principle that, in this country, estates tail have generally been changed into estates in fee-simple by ■statutes, the validity of which has not been disputed. Cooley Const. Lim. 360; Smith on Stat. and Const. Con. 412; 3 Blackf. 56.

Such statutes operate to increase and render more valuable the interest of the tenant in tail, and are therefore not open to objection by him. And no other person has any vested right, either in possession or expectancy, to be affected by the change. No one is heir to the living. The expectation of the heir presumptive to an entailed estate, must therefore be subject to the same legislative control as in other cases. Cooley Const. Lim. 360; 1 Wash. Real Prop. 81-84; Demill v. Lockwood, 3 Blatch. 56.

If the power to change an estate in fee tail into an estate in fee-simple was disputed by the donor, upon the failure ■of issue in tail, a more difficult question would arise. But •even then, we apprehend, the question would be resolved in favor of the validity of such legislation. At common law the grant of an estate to a man and the heirs of his body was a limited fee; and the probability of a reversion was so remote that the expectation was called a mere possibility of reverter. The fee having passed by the grant to the •donee, no present interest remained in the donor. Such possibility could not be granted. An exception to this rule possibly exists in cases of estates tail after possibility of issue extinct. In the case before us, however, the fee remained in Thomas Williams until his death, and passed by -descent to his heirs (or, by the will, to the trustees for the benefit of the heirs in the event of Euretta’s death without' children); and there can be no doubt that such an interest,, although as regards possession in expectancy, is capable of being granted or released, and is entitled to the protection-of the above-named provisions of the constitution, as are-other vested estates.

Whether these statutes can be enforced for the purpose of putting to sale, without the consent of the owners, remainders, and reversions acquired after their passage, we express no opinion. It is enough now to say that rights of property acquired under existing laws can not be divested at the pleasure of the legislature, although it may have-been within its power to have prevented their acquisition:

Decree for defendants.

Welch, White, Eex, and Gilmore, JJ., concurred.  