
    Susannah Morris v. Francis Harris et al.
    
    1. A bequest of the right to take tolls upon a road, in trust to pay out of the tolls to a third person a specified sum. monthly, is not in the nature of a demonstrative legacy to such third person, and upon failure or insufficiency of the tolls the monthly instalments cannot be charged upon the estate.
    3. In such case the expense of making necessary repairs upon the road, in order to make the tolls available, including a reasonable compensation to the trustee, is chargeable upon the tolls, and not upon the estate, unless the contrary appears from other provisions in the will.
    8. The general direction in item first of the will, that all “ debts” and just “charges” shall be paid out of the testator’s estate is not sufficient to show such contrary intention.
    Error to the district court of Green county.
    
      This case involves a single question relating to the con-, struction of the last will of William E. Morris.
    
      Item first of the will directs that the “ debts ” of the testa tor and “all just charges” shall be paid out of his “estate.”
    By itrem fourth certain real estate is devised to trustees, to be held during the minority of testator’s daughter, with power to sell ; and the trustees are directed to “ take and receive the rents and profits” that should accrue during the continuance of their estate, and “ therewith make all necessary repairs, pay all taxes and otlier necessary charges and expenses to and about the same.”
    By item sixth the testator bequeathed to said trustees all his “ right to take tolls ” upon a certain turnpike road, and certain (worthless) stock which he owned in the road company, in trust that they should pay out of the tolls and dividends on the stock twenty-five dollars per month to the testator’s mother during her natural life, and pay the residue of the same to testator’s wife and daughter.
    The testator’s right to take these tolls was derived under a sale on execution against the company, made in pursuance of a statute enacted for that purpose. The right was unavailable unless the owner would keep up repairs upon the road, and the testator had for many years kept them up at his own expense, the company being hopelessly insolvent, if not extinct Soon after testator’s death the road was found to be so ruinous, that it became necessary to apply all the tolls for a time to repairs, and thus suffer the monthly payments due the mother to run in arrears. This she objected to, and claimed that the repairs were chargeable upon the estate generally, and not upon the tolls; while the trustee (one only having accepted the trust) claimed that the repairs, as well as a reasonable compensation to him for his services, were chargeable upon the tolls.
    The mother, who is plaintiff here, then filed her petition against the trustee, making the daughter and wife also parties, asking a construction of the will, that the necessary repairs be charged upon the estate, and that her twenty-five dollars per month be paid to her, irrespective of repairs or other charges.
    The common pleas held that the cost of repairs, including a reasonable compensation to the trustee, was chargeable upon the tolls, and decreed accordingly. The case was taken by appeal to the district court, where a similar judgment was rendered. And now the plaintiff seeks to reverse the latter judgment by her petition in error.
    
      John Little for plaintiff in error:
    1. The will is silent as to repairs of the road, unless included in the “ charges ” mentioned in the first item, which are. payable out of the general “ estate ” of the testator, upon the same footing with his debts. And as the testator, under the trusts of the fourth item, directs the trustee to malee repairs, it is reasonable to infer that he either meant to include repairs of the road under the general term “ charges” in the first item, and to provide for their payment out of his estate generally, or designedly omitted to provide for repairs, because not liable to malee them. As to rules for the construction of wills, see Worman v. Teagarden, 2 Ohio St. 380; Thompson v. Thompson, 4 Ohio St. 333.
    2. As the testator has made no express provision for repairs of the road, and, unless included in the charges payable out of his general estate, has made none by fair intendment, so neither does the law by implication impose upon the trustee the duty of repairs. Shephard v. Smith, cited in 2 Jarman on Wills, 201.
    3. The testator’s right, depended upon and was defined and limited by statute. S. & O. 337. By his purchase he had only the right to take tolls, and was vested with none of the franchises of the company. Had he sold or assigned his right, the purchaser or assignee would have been subjected to • no duty to repair. The will is but an assignment — a transfer of a precise estate, accurately defined by law without express condition or encumbrance. If neither the testator nor the law creating the estate imposes the .condition of repairs, how can the court do it without legislating — without making. a new will for the testator, or adding, to the terms of the statute?
    4. If • the l’epairs were a charge upon. the tolls, etc., and were to be made to the exclusion of the plaintiff, then, inasmuch as the plaintiff’s legacy was for her support, it was payable at all events, and it was and is a demonstrative legacy. And whether from the insufficiency of the fund out of which it is payable, or because of its exhaustion for precedent uses, the plaintiff has not received it or does not enjoy it, it is payable by the executrix out-of the general assets. 2 U. S. Dig. 760, sec. 88; 2 U. S. Eq. Dig. 227, sec. 533; see also p. 228, sec. 538; Gilbreath & Wife v. Winter's Executors, 10 Ohio, 64; 1 Roper on Leg. 150, 153.
    5. The trustee was allowed reasonable compensation for his services. He is not entitled to compensation. The will makes no provision for him. 2 Story Eq. Jur., sec. 1268; p. 348, note 5; Gilbert v. Sutliff, 3 Ohio St. 149.
    
      P. Odlim, and P. F. Howard for defendants in error:
    1. The first clause of the will is the usual one. The word -“ charges ” in it refers to funeral expenses, costs of adminisftration, etc., but has no reference whatever to the repairs of :the turnpike given' specifically in the sixth clause.
    2. The law imposes upon the trustees the obligation of keeping the trust estate in repair. If the testator would -discharge it from repairs, he must so affirm. Hill on Trus-tees (Ed. of 1846), p. 571.
    3. If no right to repair exists, either by implication or with-out the consent of the company, repairs out of the general fund would be equally objectionable. The property cannot ibe preserved without impairs; but they must be made by the ■ owner, as in case of all other perishable property.
    4. The legacy in item sixth is not a demonstrative, but a •specific legacy, and if the fund fails, it is adeemed, the legacy fails. In other words, manifestly and clearly by the language and intent, the legacy is to be derived from this estate dn tolls and stoch, and nothing else. Redf. on Wills (Ed. of 1866), p. 457, part 2; Chase v. Lockerman, 11 Gill & J. 185; 
      Gilbreath v. Winter's Executors, 10 Ohio, 64; Creed v. Creed, 11 Clark & Fin. 491; Heneago v. Lord Andover, 3 Young & Jarvis, Exch. Rep. 370, 371.
    5. There was no error in the court below allowing reasonable compensation to the trustee. Hill on Trustees, 577.
   Welch, J.

We see no error in this judgment. The ground assumed, that the money payable to the mother is in the nature of a demonstrative legacy, is clearly untenable. It is not a legacy at all. It is a trust fund, payable out of a specific legacy, and must be satisfied from that legacy alone, unless the contrary appears in other provisions of the will.

Counsel say that the contrary does appear in items first and fourth of the will. We think not.

The direction contained in item first is nothing more than the general provision found in most wills for the payment of debts. The addition of the words “ all just charges,” does not in our opinion change the meaning in the least.

As to item fourth, it is quite unnecessary to say, that the words “ repairs,” “ charges,” and “ expenses,” therein, refer to the real estate devised by that item. The plain reading of the item is, that the “ repairs,” “ charges,” and expenses ” mentioned, are the repairs, charges, and expenses to and about the same ” — that is, to and about the land devised.

We also concur with the court below in holding that the trustee is entitled to charge a compensation for his services.

Judgment affirmed.

Day, O.J., and Beinkerhoef, Scott, and White, JJ., concurred.  