
    (Eighth Circuit — Cuyahoga Co., O., Cir’t Court,
    Jan. Term, 1900.)
    Bofore Caldwell, Marvin and Hale, JJ.
    CHARLES ELLIS WORTHINGTON v. MARY HOTTOIS and SEYMOUR F. ADAMS, Exeeutor of the Last Will and Testament, of Elizabeth Dolamater, deceased.
    
      Will construed—
    A testator in his will devised all of his property to hia two surviving children, a daughter and a son (another child, a married daughter, having died before testator, leaving children), in the proportion of three-fourth to his daughter and one-fourth to his son, with the proviso that if the same should prefer to live together in the joint occupancy of the estate, arrangements might be made agreeable to them for their joint and undivided occupancy of the estate without division if they should so wish, in which case, the entire estate should be used to the benefit of the two, and no division made during the life of the daughter, she to have the right to dispose by will of one-half of what remained of the estate, the other half to go to the children of the deoeased daughter. After the death of the testator the two continued to live together, and later agreed on a division of the property in writing in the proportion as directed in the will, but after such division of the estate, they continued to live together until the death of the son, when the daughter, who was also the sole executrix of her father’s will, filed her final account charging her brother and crediting herself with an amount for taking the necessary care of her brother (whose condition had required constant care), greater than the value of the one-fourth share of the estate which, under the division agreed upon, was set off to. him; and in her will she disposed of all of the estate to others than the children of her deceased sister. Thereupon one of the children of such deceased sister brought suit to recover the share of the property to which he claimed to be entitled on the death of the daughter in case she and her brother continued to live together, claiming that in such case, a division of the estate could not have been made under the provisions of the will.
    Held: That the brother and sister under the will, had a right to make the division of the property, and had the right to continue to live together or not as they should prefer, and that their continuing to.live together did not affect the rights of the plaintiff.
    Appeal from the Court of Common Pleas of Cuyahoga county.
   Marvin, J.

The plaintiff brings'his action to recover certain moneys which are held by the defendant, Adams, as executor of the last will and testament of Elizabeth Delamater, deceased, and to have certain real estate which stands in the name of the defendant, Hottois, decreed to belong to him,

The facts in the case are briefly as follows:

Sometime prior to the 2nd day of April, 1867, Dr, John Delamater, a resident of Cuyahoga county, Ohio, died testate, and on the date last named his will was duly admitted to probate in the probate court of said county. This will consisted of two parts: an original will executed on the 10th day of January, 1866, and a codicil thereto, executed on the 27th day of July, 1866.

The property in controversy in this action, both real and personal, is claimed by the plaintiff directly under this^will, aád by the defendant Hottois indirectly under the same will.

At the time of the execution of this original will, the testator had three children living,' to-wit: Elizabeth Delamater, John A. Delamater, and Gertrude O. Worthington.

Before the execution of the codicil his daughter Gertrude died, leaving two children, to-wit: the plaintiff in this action, and his brother Frederick Fisher Worthington.

The said Frederick Fisher Worthington and the said Elizabeth Delamater and John A. Delamater are all now dead; the death of the said John A. having preceded by several years that of the said Elizabeth.

Elizabeth Delamater died testate, but both she and John A. Delamater survived the testator; and the defendant, Seymour F. Adams, is the executor of her last will and testament.

Several persons are nominated by the testator as executors of his will; one of whom is his daughter Elizabeth, and she alone qualified as such executor.

After making provision for the disposition of his property under various contingencies named in the will, the testator provides in the 7th item as follows:

“Item 7, But should the said Elizabeth and John A. both survive me (which is highly probable), and either or both of them desire an early settlement of the estate, it is my wish and request that my executrix and executors, or such one or more of them, or their successors,as shall accept and act, take measures accordingly, and as preparatory, to that end I give to said Elizabeth the family horse and buggy harness if such shall remain, and also such articles of the household goods and furniture as she may select for her own proper personal use present or prospective. And, furthermore, I give to said John A. a good and comfortable bed with bedding and bedstead, a small table, six plain chairs, a stove adapted to warm a small room, and a case of drawers and book-shelves which he is accustomed to occupy for his personal use, The rest and remainder of all my property, real and personal, to be sold for the benefit of the estate, and, after paying all just charges against the same, I give and devise three-fourths of the entire net remainder, to said Elizabeth, and direct that the remaining one-fourth part of the same be invested in securities for the benefit of said John A. in the same manner and form and upon /the same conditions, differing only in the amounts involv&d, as more particularly described in item 5 of this instrument.”

Item 5 referred to in the foregoing item 7, provides in a certain contingency that a fractional part of the estate be invested ‘‘by loaning or otherwise, in interest or profit bearing securities, such interest or profits to be paid to said John A. semi-annually or annually during the continuance of his natural life.”

The 8th item of the testator’s will reads:

‘‘Item 8. 1st. But should said Elizabeth and said John A., both having survived me, be disposed to enter into some arrangement for centinuing to live together as a little family in the joint and undivided occupancy of whatever property I may have left for their benefit and, with that intent and purpose request that measures for the final settlement and disposition of the estate be delayed to afford them an opportunity for making an experimental trial sufficient for testing the working of such plan, it is my request that their wishes in that raspect be complied with and that means be appropriated accordingly for their joint support for the term of one year at most, and should they at the expiration of that period of time or sooner than that, jointly request that arrangements be accepted for their permanent continuance in such a way and manner of life, it is my will and desire that my executrix and executors, or such one or more of them as shall at the time have charge of the matter, proceed to dispose and arrange the estate in such manner and form as to them shall appear best adapted to further at once the interests of the estate and the comfort, and convenience of said Elizabeth and John A. in the joint use and occupancy of the same as above named; and, in taking measures to such ends, I hereby submit the arrangement of the affairs in question entirely to the judgment and discretion of said executrix and executors or their successors. If it seem to them expedient to sell any portion of the real estate or personalty, or to sell the entire homestead with a view to purchase one of less value and rent a home instead; and so also in regard to all other particulars that said executrix and executors may deem of importance, I hereby permit that it be done accordingly.
“2nd. And should the demise of said John A, precede that'of said Elizabeth, after they shall have given notice to my executrix and executors or whoever shall be acting in that capacity at the time, of their agreement to go together as above named, and being at the same time actually living together accordingly, it is my desire and direction that no division or distribution of the estate be made during the survival of said Elizabeth without her consent and approbation,but, on the contrary, that she have the use of the entire estate, principal and interest and profits, as far as may be > needed for her ample support and comfort during the remainder of her natural life; and, furthermore, I do hereby authorize and' empower her in the circumstances last-named, to convey by will one-half of the net amount of the .unexpended estate, bating" her funeral charges, that shall remain at her decease; the remaining half of her estate I hereby bequeath to my daughter Gertrude C. Worthington.
“4th But should the said Elizabeth and John A. after having settled down upon the plan of joint occupancy of the undivided estate as above-named, become at any after-time dissatisfied with that arrangement and jointly request my executrix and executor or whoever may be acting in that capacity, to take definite measures for the settlement and distribution of the estate, it is my desire and direction that measures be taken accordingly in manner and form, and disposal of proceeds as described in item 7 of this will.”
“Item 9. In all cases where by the provisions of this will funds are directed to be invested and held for the benefit of my son John A. and the interests and profits accruing therefrom paid to him annually or semi-annually, I hereby give him such interests and profits positively to be for his own proper use and disposal; and, “incase such profits and interests should prove inadequate for his comfortable and plain support, he at the same time making reasonable efforts towards his support, it is my request and direction that as much of the principal of said funds be also appropriated for his relief as the circumstances shall require.”

The first clause of item 10 of said will reads:

“If my daughter Elizabeth should neglect to avail herself of the privilege of conveying by will as expressly granted in section 2 and section 3 of item 8 of this instrument, I hereby bequeath the legacy thus put at her disposal as the case may be, to her sister Gertrude O. Worthington.

The second clause of this item reads:

“In all cases where by the conditions of this will, funds are directed to be set apart and the interests and profits accruing therefrom paid to my son John A, Delamater, etc., etc., it is my will that whatever of the principal of said funds shall remain unexpended at his decease, bating his funeral charges, be paid to his sister Gertrude C, Worthington.”

The third clause of said item reads:

“In all cases where by the terms of this will bequests are made to my daughter Gertrude O. Worthington, it is my wish and direction if she shall have deceased previous to such legacy or legacies being paid, that the same be paid to . her two children Charles Ellis Worthington and Frederick Fisher Worthington if both shall survive; the legacy or legacies to be divided equally share and share alike; if only one of them survive, the whole to be paid to one, but, if both of them shall have deceased, the same to be paid to the husband and father, Ellis Worthington.”

There is nothing in the codicil to this will, which affects the determination of the matter in controversy here.

At the time of the death of the testator he owned quite an amount of personal property, and real estate consisting of a homestead of considerable value in the city, of Cleveland, This homestead was sold by Elizabeth during the lifetime of John A. and conveyed by her as executrix of the will of her deceased father; and with a part of the avails of such sale she purchased the real estate the ownership of which is in controversy in this action, and took the title to herself personally.

From the time of the death of the testator until the death of John A., a period of some--years, Elizabeth and John A. resided together; at first, in the homestead which the testator owned at the time of his death, and after it was sold as hereinbefore stated, they resided upon the premises the title to which is in controversy here.

On the 13th of December, 1870, Elizabeth, as executrix ■of her father’s will, filed an inventory of the estate in the probate court of Cuyahoga county, Later she and her brother John A. signed a writing purporting to be a division of the property and assets of the estate of Dr. John Delamater, deceased, under his will. By this writing, certain property purports to'be set off and assigned to John A,, ■amounting in value to one-fourth of the entire estate; and certain other property, including the real estate the title to which is in controversy here, purports to be set off to said Elizabeth. This writing states that the division is to be as ■of April 1st/ 1671. The writing itself is not dated.

Subsequent to this division, Elizabeth filed with the probate court what is designated as a final account of her •doings as executrix; and this shows a separation or division •of three-fourths of the property to her, and one fourth to ■John A. And it further shows that Elizabeth.took a credit to herself for the expenses incurred by herself and John A. ■while living together under the provisions of the will.

This account was filed while John A. was still living.

Subsequently and after the death of John A., Elizabeth •filed in the probate court an account designated supplemental final account of the estate of John Delamater, deceased.

In this account sha charges herself with the property which by the writing,purporting to be a division of the ¡property, is said tó be set off to John A., and credits herself •with expenditures claimed to have been made by her for him and expenses incurred on his account more than sufficient to balance the amount of his portion of his father’s ■estate as shown by the writing of division between them.

In this account no credit is taken for anything expended for the joint support of Elizabeth and John A.

The first account referred to, being the one in which credit was taken for such expenditures, was sworn to on the 29th day of March, 1871. As has been already said, the writing purporting to evidence a division of the property between Elizabeth and John A., states that it is to take effect April 1st, 1871; that is, immediately after the preparation of this account which was filed in' the probate court as a final account.

The fact that John A. and Elizabeth continued to live in the same house and, to all outward appearance, in the same' manner after this claimed division of the property as they did before, is urged on the part of the plaintiff here as evidence that during the entire time from the death of the testator until the death of John A., these parties were carrying' out the provision of the will made for them when they should live together as a little family.

But, finding as we do, that this division was made as of April 1st, 1871, we do not think that the continuance of John A. and Elizabeth to live together, in any wise interferes with that division. It was deary shown on the trial that John A. at the time of and after said division was in very poor health and became a great charge, and that the only natural place apparently for him to be taken care of was in the family where^he had resided, and under the supervision of his siater Elizabeth, under whose care he had been for years before. This seems to afford sufficient reasoh for their living together afterwards, in the manner in which they did. The circumstances of John A.’s health were such-as made it necessary for somebody to have constant care over him, and no one could better attend to his wants than his sister Elizabeth. They bad a right to make the division,, and they had' a right after the division» was made, to live together or not, as they should think best; and their continuing to live together did not affect the rights of this-plaintiff in any manner whatever. The rights of Elizabeth and John A. in the property were fixed by the division-made in pursuance of the provisions of the will.

It will be observed that in the clause of the will of the-testator providing in a certain contingency that the estate may be divided between John A. and Elizabeth, the portion to be set off to John A. is to be invested so that the income and such part of the principal as is necessary for his support may be expended for him. No trustee is provided for to take charge of this portion so to be set off to John A., and, in the absence of any such trustee, it seems clear that it would be the duty of the executor of the will to act as such trustee; and it is upon this hypothesis that this supplemental final account was filed with the probate court.

This account, as well as the one previously filed by this executor, was approved and confirmed by the probate court, and, as has already been said, this supplemental acccount shows that no part of that which was. set off to John A. remained at^he time of his death.

Sometime before the death of Elizabeth she conveyed by warranty deed to the defendant Hottois, reserving to herself a life estate, the real estate the title of which is in controversy here; and by her last will and testament she bequeathed to' said Hottois the funds which are in the hands of Adams and the ownership of which is in controversy here.

On the part of' the plaintiff, it is urged that Elizabeth was never such owner of either real estate or personal property as that she could so convey the former by deed as to make a title in the grantee, and that she could not by will so dispose of the personal property as to make the legatee the owner thereof. While on the part of the defendant, it is claimed that by the division evidenced by the writing already mentioned, Elizabeth became the absolute owner of both this real and personal property.

If the plaintiff had, by virtue of the will of Dr. John Delamater, a vested remainder in this property, it is said that no proper steps were ever taken to divest him of such remainder But did he have any vested remainder in any of this property? His estate was to take effect and be enjoyed by him upon the happening of a certain contingency, to-wit, the death of Elizabeth without any division having been made between herself and her brother.

It is urged that prior to this alleged division, although the legal title to the real estate in controversy was in Elizabeth, she really held it as a trustee under the will of her father, and that in such trust she and John A. and this plaintiff all had an interest, and that nothing was ever done which could divest John A. or the plaintiff of their respective interests, and that, therefore, at the time of the death of John A., the plaintiff’s interest remained in said property,

But it must not be overlooked that the plaintiff was only to have an interest in any property in the event that no division of it took place between Elizabeth and John A. before the death of John A.

We find that such division did take place as is provided for in the will, and that, since the legal title to this real estate was already in Elizabeth, it was not necessary that there be a conveyance to her by John A,, but that this property having been by the terms of the division apportioned to her, the title which she already had, became absolute in her,

Dickey, Brewer & McGowan; White, Johnson, McGaslin & Cannon, for Plaintiff. Chas. E. Pennewell, for Defendants.

This results in our finding that the plaintiff has no interest whatever either in the real estate described in the petition, or in the funds in the hands of Adams as executor of the will of Elizabeth. And the petition is, therefore, dismissed at the costs of the plaintiff.  