
    Heath v. City of Cleveland.
    
      Wills—Construction—Language given ordinary legal significance—Words “legal heirs” given legal and technical meaning, when—Executory devise not to vest until expiration of definite period—Unnecessary to create intervening freehold—Testator’s intention not defeated by Section 10580, General Code.
    
    1. The language of a will is to be given' its ordinary legal significance, unless a contrary intention on the part of the testator appears from the will itself, interpreted in the light of the circumstances of which testator knew.
    2. Where in a will, a testator uses the words “legal heirs” discriminatingly, and no intention to use them otherwise is made to appear by the will, interpreted in the light of the circumstances of which the testator was cognizant, a court is not authorized tp give such words a meaning other than legal and technical.
    3. Where a testator, in one item of a will, devises land to certain of his grandchildren, the children of a daughter, designating them by name, and in another item of the will devises land to the legal heirs of a son who is living and has living children, and in a third item devises land to three of his children, “or in case of the decease of any or all of them to their legal heirs,” the will itself not only discloses that he used the words “legal heirs” understandingly, but that he desired to distinguish the devise to the legal heirs of the son from the devise to the children of the daughter, designated by name.
    4. An estate in land may be created by will in Ohio that will not vest until the expiration of a definite period, or the happening of some event after ihe death of the testator, without the creation by will of an intervening estate upon which to rest it.
    5. Section 10580, General Code, is not effective to defeat the intention of the testator, expressed or clearly implied.
    [1] Wills, 40 Cyc. pp. 1388, 1392; [2] Id., p. 1459; [3] Id., p. 1398; [4] Id., p. 1644; [5] Id., p. 1386.
    (No. 19012
    Decided April 13, 1926.)
    
      Error to the Court of Appeals of Cuyahoga county.
    The plaintiff in error instituted this action against the defendant in error in the court of common pleas of Cuyahoga county to recover the value of an undivided one-eleventh interest in two parcels of land, described in her petition, in the possession and occupancy of the defendant in error as a part of its municipal water system. The cause was heard upon an agreed statement of facts, which was substantially as follows:
    The plaintiff is the paternal granddaughter of William Hudson and Delphia Hudson, the former of whom died on or about the 10th day of August, 1865, and the latter upon the 30th day of May, 1880, having never remarried. William Hudson left a will which was duly admitted to probate on the 29th day of August, 1865, which will reads as follows:
    “After discharging all just and legal claims, that may exist against my estate, I give and bequeath to my wife Delphia Hudson in case she survives me all monies credits orders belonging to me with all my personal effects of whatever sort, also in addition to the above, the use of all my real estate, so long-as she shall remain my widow, excepting however my lands in the state of Michigan and also nine and one half acres of land now owned by me in lot 409 of East Cleveland township. In the second place I give and bequeath to my son William P. Hudson five acres of land off from the south end of land owned by me in lot four hundred and ten of East Cleveland township. I also give and bequeath to my daughter Buth Willard 7 acres of land in said lot four hundred and ten and adjoining the land bequeathed W. P. Hudson and lying next north of the same. I also give and bequeath to the legal Heirs of Asa S. Hudson, the balance of my land in said lot 410 be the same more or less. The above three bequests to my children William and Buth and to the heirs of Asa S. Hudson are not in any way to interfere with the bequest to my wife Delphia. I also give and bequeath to Delphia Hill two acres of land now owned by me in lot 409; also to Alonso, Lesley and Birny Stafford one acre of land each in the same lot No. 409 of East Cleveland township. The balance of my land in said lot 409 being 4% acres to be divided equally between my three children William P. Hudson, Buth Willard and Asa S. Hudson or in case of the decease of any or all of them to their legal heirs.
    “I add also to the above the following proviso; that should at any time during my life deem it expedient to dispose of my real estate then, if any of the avails of such sale shall remain after the decease of myself and wife William P. Hudson shall receive 5/22 Buth Willard 7/22 and Asa S. Hudson 10/22 of what shall so remain and the said Delphia, Alonso, Lesley and Birny Stafford shall be entitled to receive their respective shares of such residue from lot 409 being 1/9 for each of the boys and 2/9 for said Delphia Hill.
    “To my son Homer E. Hudson I give and bequeath my land in the state of Michigan situated in the township of Georgeton in the county of Ottawa, being the north half of the southeast quarter of Section 32 township north range 13 east. I also name as executor to this my last will and testament Elliott L. Willard.”
    At the time of his death William Hudson owned the two parcels of .land described in the petition, which parcels were included within the devise in the will “to the legal heirs of Asa S. Hudson.” The plaintiff, Florence Hudson Heath, is one of eleven children of Asa' S. Hudson and his wife, Nancy Z. Hudson, and is one of the eleven legal heirs of Asa S. Hudson. Asa S. Hudson died February 12, 1920.
    The city of Cleveland is now, and since January 20, 1883, has been continuously in possession, occupation, and enjoyment of the lands, claiming title thereto under a conveyance and an appropriation proceeding, and has erected, maintained, and operated thereon a pumping station and reservoir, for the purpose of supplying water for the inhabitants of the city of Cleveland.
    Subsequent to the death of her father, and prior to the institution of this action, the plaintiff duly tendered to the defendant her warranty deed for an undivided one-eleventh interest in the lands in controversy, and demanded compensation therefor; Said deed and demand have been refused by the defendant.
    Plaintiff has received no compensation whatever for any interest she may have in said lands.
    William Hudson, the testator, at the time of making his will, and at the time of his death, had four children living, to wit, Homer E. Hudson, Asa S. Hudson, William P. Hudson, and Ruth Willard, and ten grandchildren, to wit, Delphia Hill, Alonzo Stafford, Leslie Stafford and Bernie Stafford, who were the children of the testator’s deceased daughter, Calista, who died in 1854, Phylie H. Doan and Ruth Hudson, daughters of Thomas J. Hudson, a son of the testator, who died in 1863, and A. K. Hudson, born in 1857, Herbert E. Hudson, born in 1859, Robert A. Hudson, born in 1861, and Viola S. Hudson, born in 1863; these latter four grandchildren being children of Asa S. Hudson and Nancy Z. Hudson.
    At the time of the death of the testator’s widow, Delphia Hudson, in 1880, the four children of the testator, namely, Homer, Asa, and. William P. Hudson, and Ruth Willard, and the four children of the testator’s deceased daughter, Calista, namely, Delphia Hill, Alonzo, Leslie, and Bernie Stafford, were all living, as were also ten children of Asa S. Hudson, namely, A. K. Hudson, Herbert Hudson, Viola S. Hudson, and Robert Hudson, born on the dates above given, and also Thomas S. Hudson, born in 1867, Clarence W. Hudson, born in 1869, Howard G. Hudson, born in 1871, Chauncey 0. Hudson, born in 1874, Delphia Hudson, born in 1876, and Gertrude Hudson, born in 1879.
    The plaintiff, Florence Hudson Heath, was born on March 2, 1882, subsequent to the death of her grandmother, Delphia Hudson. Asa S. Hudson, son of the testator, was born May 26, 1833, and died February 12, 1920, leaving surviving him all of his above-named eleven children. Nancy Z. Hudson, the wife of Asa S. Hudson, was born in 1838, and died in 1919.
    On the 29th day of November, 1878, Asa ¡8. Hudson was by the probate court of Cuyahoga county duly appointed and qualified as guardian of the persons and property of Herbert E. Hudson, Robert A. Hudson, Yiola S. Hudson, Thomas S. Hudson, Clarence W. Hudson, Howard G. Hudson, Chauncey 0. Hudson, and Delphia Hudson; and on June 18, 1881, he was by the probate court of Cuyahoga county duly appointed and qualified guardian of the person and property of Gertrude E. Hudson. On April 5, 1887, he was duly appointed and qualified as guardian of Florence Z. Hudson, the plaintiff herein; all the foregoing persons being minors at the time of the respective appointments, and children of Asa S. Hudson.
    In each of the aforementioned applications for guardianship the application recited that the estate consisted of lands devised to the several children by their grandfather, William Hudson.
    On the 29th day of November, 1882, the council of the city of Cleveland adopted a resolution declaring the necessity for, and its intention to appropriate for, waterworks purposes parcel No.. 2 described in the petition, and on the 20th day of January, 1883, filed its petition in the probate court of Cuyahoga county, Ohio, to assess compensation for parcel No. 2. In these proceedings Robert E. Hudson, Thomas S. Hudson, Clarence W. Hudson, Howard G. Hudson, Chauncey 0. Hudson, Delphia P. Hudson, and Gertrude E. Hudson, all minors and children of Asa S. Hudson, were parties defendant, as were also Asa S. Hudson and Nancy Z. Hudson, his wife. Florence Hudson Heath, the plaintiff herein, then an infant under one year of age, was not made a party to the appropriation proceedings, and received no notice thereof. In the appropriation proceedings the defendant paid into court the sum of $11,397.50, the amount awarded by the jury for parcel No. 2; and by order of the court the same was divided: $5,552.10 to Nancy Z. Hudson, $5,754.95 to Asa S. Hudson, guardian of Eobert C. Hudson, Thomas S. Hudson, Clarence W. Hudson, Howard G. Hudson, Chauncey 0. Hudson, Delphia Hudson, and Gertrude Hudson; the balance of $90.45 was paid to the treasurer of Cuyahoga county. Asa S. Hudson received nothing individually by reason of the appropriation proceedings.
    In 1881 Asa S. Hudson, as guardian of Eobert A. Hudson, Thomas S. Hudson, Clarence W. Hudson, Howard G. Hudson, Chauncey O. Hudson, Delphia Hudson, and Gertrude Hudson, minors and children of Asa S. Hudson and Nancy Z. Hudson, filed his petition in the probate court of Cuyahoga county, in which he stated that the aforementioned minors and Nancy Z. Hudson are the owners in fee of a certain tract of land, which tract included the land described as parcel No. 1 in the petition filed herein. He further stated in the petition that the minors aforementioned had an undivided seven-tenths interest in the premises, each minor having an undivided one-tenth, and that Nancy Z. Hudson owned an undivided three-tenths interest, and stated that it was necessary, for the support of the aforementioned minors, to sell some portion of their estate in the premises, and further asked that the property be sold at private sale. Notice was given to the then living minors and a guardian ad litem appointed for them. In 1881 an order of appraisal was issued, returned, and an order of private sale issued to the guardian, ordering him to sell the undivided .seven-tenths interests of the minors mentioned in the petition in the property described. On June 24, 1881, the property was sold at private sale to William B. Howard, for the sum of $7,000. The sale was afterward confirmed, and deed ordered on June 25, 1881, and a deed by the guardian was executed in pursuance thereto to William B. Howard.
    On the 1st day of. December, 1882, William B. Howard quitclaimed the property to the city of Cleveland. On June 14, 1881, A. K. Hudson, Herbert Hudson, and Viola S. Hudson, all being of legal age, conveyed their interest, by warranty deed, to Nancy Z. Hudson.
    On the 24th day of March, 1875, the testator’s widow, Delphia Hudson, by quitclaim deed, conveyed to Asa S. Hudson.
    By agreement, the value of the undivided one-eleventh part of the two parcels of land described' in plaintiff’s petition is fixed at $15,000.
    The issues made in the pleadings, in view of the agreed statement of facts, raise no question for the consideration of the court other than the construction of the will and the applicability or nonapplicability of the statutes of limitations.
    The trial court construed the will to create and vest an estate in fee in the heirs of Asa S. Hudson at the date of his death, and, therefore, that no statute of limitations began to run until that date, and rendered judgment against the city for the sum. of $15,000. Error was prosecuted to the Court of Appeals, where the judgment of the court of common pleas was reversed and final judgment entered for the city. Error is prosecuted here.
    
      Messrs. Day ds Day, Mr. Sterling Parks, and Mr. Donald W. Kling, for plaintiff in error.
    
      Mr. Carl F. Shuler, director of law, for defendant in error.
   Robinson, J.

It is the contention of the plaintiff in error that the will of William Hudson was a devise of the property in question to the legal heirs of Asa S. Hudson, vesting in them at such time as they would be able to qualify, by the death of Asa S. Hudson, as legal heirs; that not only the will so provided, but the intention of the testator to so provide appears from the will, and the circumstances under which the will was executed and testator died make such intention the more reasonable and apparent.

It is the contention of the defendant in error that the testator did not succeed in expressing his exact intention by the language he employed in his will; that he intended to vest the property at his death in the then living children of Asa S. Hudson, or, if not in them finally, in them with the possibility of their being partially divested for the purpose of allowing after-born children to share with them; that the phrase “legal heirs of Asa S. Hudson” should be construed to mean “heirs apparent” or “heirs in being.”

The construction of the will according to one or the other theory necessarily is determinative of this case, for, if the property did not vest in the plaintiff in error until the death of Asa S. Hudson, no statute of limitations had tolled against her at the time of the filing of her petition; whereas, if the property vested in the children of Asa S. Hudson living at the time of the death of the testator, the plaintiff in error was not a beneficiary under the will at all, or, if it vested in the children then in being, subject to divestment in part in favor of after-born children, in the proportion that each child bore to the whole number of children then in being or thereafter to be born, there would be no escape from the bar of the statute of limitations, whatever theory of the limitation applicable, or the date the particular limitation began to run, might be adopted.

The intention of the testator is to be gathered from the will itself, aided only by such extraneous facts, as will the more nearly put the court in the position of the testator. The only extraneous facts which may aid the court in the construction of this will are that, at the time of the execution of the will and the death of the testator, testator had four living children, of whom Asa S. Hudson alone had living children; that he had ten living grandchildren; that Delphia Hill, Alonzo Stafford, Leslie Stafford, and Bernie Stafford were grandchildren of the testator, and children of a daughter of the testator who had deceased prior to the date of the execution of the will; that Phylie H. Doan and Ruth Hudson were grandchildren, daughters of a son of testator, who had died prior to the date of the execution of the will, and for whom provision had been made by the testator during his life; that A. K. Hudson, Herbert E. Hudson, Robert C. Hudson, and Viola S. Hudson were grandchildren of the testator, living at the date of the execution of the will and at the date of the death of the testator, and the only then living children of Asa S. Hudson.

The facts that subsequent to the death of the testator there were born to Asa S. Hudson and his wife, Nancy Z. Hudson, seven additional children, of whom plaintiff in error was one, and that she was born on March 2, 1882, and received no part of the compensation paid by the city, or any one else, for the lands, are facts pertinent to this case, but not to the construction of the will.

Having in mind the facts above mentioned existing at the time of the execution of the will and the death of the testator, it is significant that the testator, in bestowing his bounty, in every instance, except with reference to the heirs of Asa S. Hudson, and with reference to the heirs of William P. Hudson, Ruth Willard, and Asa S. Hudson, refers to the objects thereof by name, and in most instances by designation of their relationship to him; for instance, he gives and bequeaths “to my wife Delphia Hudson”; he gives and bequeaths “to my son William P. Hudson”; he gives and bequeaths “to my daughter Ruth Willard”; and he gives and bequeaths “to Delphia Hill”; also “to Alonso, Lesley and Birny Stafford.” These latter four he might well have described or designated as “the legal heirs of Calista Stafford,” for Calista Stafford, his daughter, their mother, was already deceased. But, knowing their names, he chose to designate them by name. There being four of these children, as there were four living children of Asa S. Hudson, it is most significant that he designated these children by name, and did not designate the children of Asa S. Hudson either by name or as “children of Asa S. Hudson.” Nor did he designate them as an existing class, but designated a class of which the then living children of Asa S. Hudson might or might not some day be a part; a class of which his other children or the other grandchildren of testator, born or thereafter to be born, might be a part, but, of whomsoever composed, of his blood.

The reason for the distinction between the four children of his deceased daughter and the four living children of Asa S. Hudson is apparent. The four children of his deceased daughter constituted a closed class. The legal heirs of Asa S. Hudson constituted an undetermined class, open not only to children which might thereafter be born to Asa S. Hudson and Nancy Z. Hudson, but possibly open to his other children, grandchildren, and their legal heirs.

The reason for the distinction between Asa S. Hudson and testator’s three other living children may well have been that of all of them he had hope in Asa S. Hudson alone for the perpetuation of his family, since none of his other living children had children.

It is also significant that the testator used the words “legal heirs” with reference to the other objects of his bounty but once, and then he indicated by the language used in connection therewith that he used them in their technical, legal sense, thus:

“The balance of my land * * * to * * * my three children William P. Hudson, Ruth Willard and Asa S. Hudson or in case of decease of any or all of them to their legal heirs.”

The same reason which impelled the testator in this bequest to his three children, including Asa S., to abstain from designating the alternative beneficiaries by name obtained to the beneficiaries he designated as “the legal heirs of Asa S. Hudson.”

It is also significant as indicating the intention of the testator that, so long as he was devising land, he devised the land to the legal heirs of Asa S. Hudson; but, when he came to providing for the contingency of the land being converted into money by him, he did not bequeath the money to the legal heirs of Asa S. Hudson, but bequeathed it to Asa S. Hudson himself, thus indicating a purpose, not so much to exclude Asa S. Hudson from his bounty, as to insure to the Asa S. Hudson branch of his family the greatest possible benefit ' from his bounty; therefore, that, if the bounty consist of real estate at the time of his decease, its date of vesting should be at the most distant period practicable, and the Asa S. Hudson branch of his family receive the benefit of enhanced values, which time and the growth of the city were sure to accomplish. '

The testator having used phraseology which, in its technical, legal signification, vested this real estate in the heirs of Asa S. Hudson at his death, and the intention of the testator not appearing to have been other than that which the words legally and technically signify, on the contrary, the intention of the testator appearing to have been to create an estate which would vest in the heirs of Asa S. Hudson when they could technically qualify as such, our duty is to so construe his will, unless the law of the state forbids.

We find nothing in Section 10580, Greneral Code, which prevents the construction of the will according to its exact terms and the testator’s in- ' tention.

A devise such as the one here under consideration has been defined as an “executory devise”— “such a limitation of a future estate or interest in lands or chattels as the law admits in the case of a will, although contrary to the rules of limitation in conveyances at common law, or such a disposition of them by will that thereby no estate vests on the death of the devisor, but only on some future contingency, and may be said to include every devise of a future interest which is not preceded by an estate of freehold created by the same will, or which, being so preceded, is limited to take effect before or after, and not at, the expiration of such prior estate.” 40 Cye., 1644.

An example of an executory devise is “a devise to A of an estate to commence six months after the testator’s death, or when A becomes a citizen of the United States, provided he does so within a limited time.” Tiffany on Eeal Property, Section 160, page 553.

In Ohio, the right of a testator to create an estate by will, which shall not vest in the beneficiary at the death of the testator, but shall vest at some date subsequent thereto, measured by a definite lapse of time, or by the happening of some event, without the creation by the testator of an intervening freehold upon which to rest such estate, has been recognized in Lessee of Thompson v. Hoop, 6 Ohio St., 481; Niles v. Gray, 12 Ohio St., 320; Durfee v. MacNeil, 58 Ohio St., 238, 50 N. E., 721.

The judgment of the Court of Appeals is reversed, and that of the court of common pleas is affirmed.

Judgment reversed,

Marshall, C. J., Jones, Matthias, Day, Allen and Kinkade, JJ., concur.  