
    No. 432
    CLEVELAND (City) v. HEATH
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5452.
    Decided Feb. 16, 1925
    Judges: Buchwalter, Hamilton & Cushing, 1st Dist., sitting.
    1271. WILLS—“I also give and bequeath”, held to show an intention to give an estate in praesenti and not in futuro.
   HAMILTON, J.

Mrs. Florence Heath brought an action in the Cuyahoga common pleas for the recovery of the value of certain land acquired by purchase by the city of Cleveland through appropriation proceedings. She claimed to be owner in fee simple of one-eleventh the land described in her petition. A jury was waived and the court found in favor of Mrs. Heath and rendered judgment in her favor for the amount of the agreed value of her interest. Error was prosecuted to the court of appeals.

It seems that Mrs. Heath claims her interest under a will of her grandfather probated in 1865. Under the will her grandfather “gave and bequeathed to the legal heirs of Asa Hudson (her father) the balance of my land in lot 410 be the same more or less.” In 1882 the city council of Cleveland brought proceedings to appropriate property for water works purposes. Mrs. Heath, then an infant, was not made a party to the proceedings and received no compensation therefrom. Mrs. Heath contended that the property did not pass to her as one of the children until the death of her father which occurred in 1920, since Asa Hudson could have no heirs until his decease, the title of the land did not vest until his decease.

The city contended that the true intent was to use the term “legal heirs” as meaning heirs apparent, or children of Asa Hudson and to be a gift in praesenti and not in futuro. Under this condition the property would have passed to Asa Hudson’s children at the death of the testator back in 1865 and Mrs. Heath’s claim would be barred by limitation. The Court of Appeals held:

1. Testator used the words “legal heirs” in the sense of heirs apparent or children of Asa Hudson.

2. That testator intended his wife to have a life estate, remainder to the children of Asa Hudson.

3. The estate vested in the children of Asa Hudson at the time of the taking effect of the will.

Attorneys—Carl F. Shuler for City; Day & Day and Donald W. Kling for Heath; all of Cleveland.

4. This construction gives full effect to will and would leave no part thereof undisposed of.

Judgment of lower court reversed and petition dismissed.  