
    CONSTRUCTION OF WILL CREATING TRUSTS IN REAL ESTATE.
    Common Pleas Court of Montgomery County.
    Clarence Kiefer, Trustee, v. Oscar J. Bard, Aministrator, et al.
    Decided, 1909.
    
      Wills — Construction of Devise of Real Estate in Trust — Disposition of Rents and Profits — Provision for Investments — Executory Devises Where Condition has Occurred — Passive Trust.
    
    The form of devise adopted by the testator in this case is held to have created by Item 3 a passive trust only, the true construction of which is that after the payments therein provided the sums left over were given absolutely to the son named, as rents and profits from the real estate therein devised, which devise of rents and profits carried without condition the fee of the devised real estate; that this was an executory devise, and the condition therein named having occurred, the equitable fee to the real estate therein described in said item is in the minor children of said son, now deceased, share and share alike, the title whereof descends to them directly from their grandfather under said Item 3.
    That under Item 5 of said will the daughter therein named took an equitable fee in the real estate therein devised in trust, defeasible by a condition subsequent, which fee simple so devised became vested in said daughter subject to the defeasance aforesaid; that .the gift in said Item 5 is an executory devise subject to a condition, and that the equitable fee is in said daughter defeasible on the aforesaid condition.
    
      Goitschall (& Turner, for plaintiffs.
    
      McMahon & McMahon, for cross-petitioners.
   Brown, J.

This case came before the court upon a petition filed by-Clarence Keifer, trustee under the will of William P. Callahan, deceased, for William P. Callahan and Frank M. Callahan, minor children of Charles N. Callahan, who was a son of William P. Callahan, deceased, to construe certain trusts set'forth in items “third” and “fifth” of the will of William P. Callahan, deceased.

The petition recites that on the 24th day of June, 1899, William P. Callahan then in full life made his last will and testament, and therein disposed of all of his real and personal estate; that he died on the 17th day of January, 1903, leaving surviving him Elizabeth Callahan, his widow, Charles N. Callahan, William K. Callahan and Lilian Blanche Callahan his children; that his said will was probated on the 22d of January, 1903; and William K. Callahan was duly appointed and qualified executor of said will by the Probate Court of Montgomery County, Ohio.

Item third of the will of William P. Callahan, deceased, devised to William K. Callahan in trust for the use and benefit of Charles N. Callahan the ground and buildings known as the Callahan Block on Main street in Dayton, Ohio, to hold and care for and rent, and after payment of the taxes, repairs and expenses, to pay from the proceeds to Charles N. Callahan in monthly installments the sum of $3,000 each and every year for and during the period of ten years after the death of William P. Callahan, and $5,000 each and every year for and during the ten' years succeeding the term aforesaid; and to invest for the use of -the said Charles N. Callahan any sums left from time to time after the payment of the above sums; and at the end of said period of twenty years, that William K. Callahan, as trustee, or his successor, convey said real estate and property absolutely to Charles N. Callahan, if living, and if dead, to his children and heirs share and share alike.

An answer and cross-petition was filed by Mrs. Lilian Blanche Richards, nee Callahan, the daughter, asking the construction by this court of item fifth of said will, which item fifth devised to William K. Callahan in trust for the use and benefit of Lilian Blanche Callahan, the ground and building known as the Calla-' han Bank Building in Dayton, Ohio, to care for and rent, and collect the rents and income therefrom, and after payment of taxes, repairs and expenses, to pay from the net proceeds thereof to Lilian Blanche Callahan, in monthly installments, the sum of $3,000 each and every year for and during the period of ten years after the death of William P. Callahan, and $5,000 each and every year for and during the ten years succeeding the period aforesaid, and carefully and safely invest for the use and benefit of the said. Lilian Blanche Callahan, and her heirs, any surplus received from said rents, and at the end of said period of twenty years, the said William K. Callahan, as trustee, or his successor, to convey the said real estate and property absolutely to Lilian Blanche Callahan, if living, and if not, to her children or her heirs equally.

On April 10th, 1903, the widow and heirs being disatisfied with the amount of money to be paid to Charles.N. Callahan and Lilian Blanche Callahan under said items third and fifth of the will of William P. Callahan, deceased, and the widow refusing to accept under said will unless there was a change in the amounts so payable under said several items, an agreement was entered into between Mrs. Elizabeth Callahan, the widow, Charles N. Callahan, William K. Callahan and Lilian Blanche Callahan, the children and only surviving heirs of William P. Callahan, wherein it was agreed that there being some question as to the true construction of the items third and fifth of the will of William P. Callahan, deceased, as to whether the limit in the amounts to be paid the devisees in said will from the rents, and of the real estate therein devised, was directory or mandatory, and a* the conditions are changed since the will was executed and the reasons for the restriction no longer exist, the parties signing the agreement authorized and empowered William K. Callahan, the executor and trustee under the said will, and his successors in office, if he shall deem the same necessary and proper, to pay to said Charles N. Callahan the full amount, less taxes, costs and expenses, collected from the real estate described in item third of said will, and to pay to said Lilian Blanche Callahan the full amount less taxes, costs and expenses, collected from the real estate described in item fifth of said will; the same to be paid in such sums as said trustee might deem right and at such times as said devisees should ask and need it.

The said Charles N. Callahan died on the 25th of August, 1903, leaving his two minor sons, William P. Callahan and Frank M. Callahan, surviving him.

William K. Callahan continued as executor and trustee under the will, of William P. Callahan until his death on the 11th of May, 1907. On May 29th, 1907, Oscar J. Bard was duly appointed and qualified as administrator de bonis non with the will annexed of the estate of William P. Callahan, deceased, and on the same date Mr. Bard was also appointed trustee under item fifth of said will of Mrs. Lilian Blanche Richards, the daughter.

On June 1st, 1907, Clarence Keifer, the plaintiff, was appointed .trustee under item third of the will of William P. Callahan for William P. Callahan and Frank M. Callahan, minor sons of Charles N. Callahan, deceased.

All the parties having any interest whatever, including the unborn heirs, were parties defendant in this cause, and were before the court either by waiving the issuing and service of summons and entering their appearance, or being properly served by summons, and by publication; and guardians ad lüem were appointed for the minor children of Charles N. Callahan, and also for any unborn heirs that could possibly have any interest in the cause.

' From the testimony, it appears that under the agreement of April 10th, 1903, William K. Callahan, during his lifetime, paid • such amounts from the rents and profits from the real estate described in items third and fifth to the beneficiaries, as they might desire and need; .and that Clarence Keifer, the successor of William K. Callahan, in trust for the minor children of Charles N. Callahan, also paid under said agreement of April 10th, 1903, larger sums than were provided for in item third of said will; that Osear J. Bard, as trustee for Mrs. Lilian Blanche Richards, had refused to pay any greater sum than that provided in item fifth of said will.

The testimony .also shows that the widow, Mrs. Elizabeth Callahan, refused .to accept under said will unless the agreement of April 10th, 1903, was entered into, as the conditions had very materially changed from the time that the will was made, the 24th day of June, 1899, and desired that the rents from the several properties be paid to her children, the beneficiaries entitled to it.

The court is asked to give a true construction as to the said items third and fifth and to determine as to the title to said properties, and in whom the said title vested at the death of William P. Callahan, the father.

It is clear from the evidence and in view of the law as is found by the court, that the devise and gift to William K. Callahan, as trustee in said several items third and fifth, created only a passive trust in William K. Callahan, and the true construction of said item third as to the investment of any sums left after the payment of the sums therein provided to Charles N. Callahan, was giving to Charles N. Callahan absolutely the rents and profits from the real estate therein devised, which devise of rents and profits without condition carried the fee of the devised real estate; and that the gift or devise in said item third was an executory devise, and the condition having occurred, to-wdt, Charles N, Callahan having died within twenty years, the equitable fee to the reahestate described in item third of said will is in William P. Callahan and Frank M. Callahan, minor defend* ants, children of the said Charles N. Callahan, deceased, share and share alike, and that they have title to said real estate directly from William P. Callahan, their grandfather, under said item third of said will.

Under item fifth of said will, Lilian Blanche Richards, thó daughter, took an equitable fee in said real estate so devised in trust to William K, Callahan, defeasible by condition subsequent, to-wit, the death of Lilian Blanche Richards within the twenty years; and the fee simple in said real estate, so devised in item fifth of said will, became vested in said Lilian Blanche Richards upon the death of her father, William P. Callahan, subject to the defeasance as aforesaid.

The gift in said item fifth is an executory devise subject to the condition that Lilian Blanche Richards die within twenty years, and the equitable fee is in Lilian Blanche Richards de-feasible upon the aforesaid condition.

I further find that the payments made under the agreement of April 10th, 1903, by William K. Callahan, as trustee under items third and fifth of the will, are proper credits in the accounts of William K. Callahan, deceased, and the payments made by Clarance Keifer, his successor, trustee under -item third of said will, have been properly made, and the said trustee should be credited with said several sums paid by him under said item third of said will; and he is to be-allowed the same in the settlement of his accounts as such trustee.

It is' evident, then, from the foregoing, that Osear J. Bard, as trustee of Lilian Blanche Biehards, and Clarence Keifer, as trustee of William P. Callahan and Frank M. Callahan, minor children of Charles N. Callahan, are simply passive or dry trustees, the title to the property being as above stated all the rents and profits of the property described in items third and fifth of said will being payable to the several beneficiaries. The title to the said properties vested, as hereinbefore stated, in said beneficiaries, and the purposes for the creation of said trusts having all been accomplished and all the parties interested, or that might be interested in the trust property being in existence and before the court, and being desirous of the termination of the said trusts, the same ought to be' terminated, and the trustee, Clarence Keifer, should file his final account and transfer the moneys and investments that he has to his cesluis que trust, William P. Callahan and Frank M. Callahan if of full age, or to their guardian if minors, and should convey by deed of special warranty the said premises in fee simple to said William P. Callahan and Frank M. Callahan, the minor children of Charles N. Callahan, deceased.

I further find that Oscar J. Bard, as trustee under item fifth of the will should also file his final account, and pay the moneys on hand and transfer the investments he has to Lilian Blanche Bich-ards and convey to Lilian Blanche Biehards the property described in item fifth of said will, subject to the condition that in ease she should die within twenty years from January 22d, 1903, then the title in fee simple in and to said premises should vest in her children, or in default of children, in her heirs; the said deed to. convey the exact interest prescribed in said will and each trustee to pay one-half the costs of this proceeding.

Let an order be drawn in accordance with the above.  