
    Charles Hobbs v. Samuel Smith.
    A devised land to his son for ninety-nine years, without impeachment for waste, with remainder to the son’s children, should he have any. The will provided: That the son should support himself, and, if he ever had a family, should support it also, from the land, and invest the balance of the rents and profits in improvements thereon j that the land should not be taken in execution for payment of his debts ,* that he should have power to dispose of it by will, not however to defeat the purpose of the will ,* and that he should have full power to sell, re-invest, and to re-sell at pleasure, and without accounting to any person or court for the proceeds or purchase money. Held :
    1. That a sale of the land on execution against the son, and a deed therefor by the sheriff, pass, at least, a present legal estate, and right of possession to the purchaser.
    2. That the estate and right so passed are not defeated or divested by a subsequent conveyance in fee by the son, and it does not enable the purchaser under him to recover possession from the sheriff’s vendee.
    Error to the district court of Richland county.
    The original action was brought in the common pleas, by the plaintiff in error, against the defendant in error, to recover possession of eighty acres of land. Both parties claimed title under Nicholas Snyder, the devisee of his father, Nicholas Snyder, deceased. The devise to Nicholas is in the following words:
    “ 3. I give, devise, and bequeath to my son Nicholas Snyder, his executors and administrators, to the use following (describing the eighty acres in controversy) “ which I give in addition to what my said son has already got of my estate, that is to say, to the said Nicholas Snyder, his executors and administrators, the aforesaid mentioned and described tract of land, together with the appurtenances thereunto belonging, for the term of ninety-nine yeavs, to commence from, and after my death, without impeachment of waste, upon the trust, and for the intent and purpose, and with, and under, and subject to, the provisions hereinafter allowed or expressed with respect thereunto, and as to, and for, the said premises comprised in said term of ninety-nine years, from, and after the end, expiration, or other sooner determination of said term, and in the meantime subject thereunto, I give, grant, and devise the aforesaid premises to the lawfully begotten children of my said son, Nicholas Snyder, should he so have any begotten in lawful wedlock, the same being hereby devised to them, as my grandchildren, in fee simple, and to their heirs and assigns forever. And I do hereby further declare my will to be that the said premises so intended to be comprised within said term of ninety-nine years, to my said son Nicholas Snyder, his executors and administrators, shall be used for the support and maintenance of my said son Nicholas Snyder, and his family, should he so have one hereafter. And I hereby declare and direct that all the rents, issues and profits, arising out of the aforesaid premises, shall be laid out and invested in the improvement of said comprised premises, designated in the term of ninety-nine years, after paying the tax thereon from year to year, and supporting my said son Nicholas Snyder, and his family, should he so have one hereafter; and I hereby declare and direct that all the rents, issues, and profits arising out of the aforesaid premises shall be laid out and invested in the improvement of said comprised premises, designated in the term of ninety-nine years, after paying the tax thereon, from year to year, and supporting my said son Nicholas Snyder, and that the same shall not be liable to an j fine or recovery as against my said son, nor shall the same be liable to the payment of any debts of my said son’s accruing, in any way whatever. And I do, hereby, further declare my will to be, that my said son, Nicholas Snyder shall have power from time to time to devise or lease the said premises, for the most improved tent, for any term or number of years not exceeding five, and without taking any fine. And I further declare that my said son, Nicholas Snyder, his executors, and administrators, shall have power to sell and convey the said comprised premises, and upon the sale thereof before any lawful heirs of his body shall arrive at the age of twenty-one years, and make a deed or deeds of conveyance therefor, to the purchaser or purchasers, and that the receipts of my said son Nicholas Snyder, to the purchaser or purchasers, shall be a good and' sufficient discharge to the said purchaser or purchasers for the same; and upon said sale the proceeds shall be by my said son Nicholas Snyder, his executors and administrators, invested in other lands for the support and maintenance of the lawful heirs of my said son, Nicholas Snyder; and that my said son, Nicholas Snyder, shall be supported out of said land during the time aforesaid. But, that the same shall not be sold to satisfy any debts of my said son, Nicholas .Snyder, and that in case they should be, the purchaser or purchasers shall not take any thing by virtue of said purchase, and that the same shall be held as void and of no effect. And I further declare, and hereby direct, that my said son, Nicholas Snyder, shall be trusted to sell and convey the said comprised premises, and invest the moneys arising out of the sale thereof, in other land for the purpose aforesaid, and the said purchaser or purchasers shall not be bound in any way or by any court to see to the application of the purchase money, or proceeds of said sale or sales, as often as they occur or be made; and that my said son, Nicholas Snyder, shall have power to sell, and re-sell, and convey, at his pleasure, and invest the proceeds, and for the same purposes as aforesaid, And I further order and direct, that in case my said son, Nicholas Snyder, shall at any time sell, the proceeds thereof shall not be interfered with by any person or persons, or by any court; and that the same shall be invested in other lands for the purposes aforesaid. And I further order and declare that my son, Nicholas Snyder, shall have power, and may dispose of the said comprised premises, or those that he may hereafter purchase with the proceeds thereof, by his last will and testament, to whomsoever he pleases, but not to defeat the object of this my last will and testament.”
    Upon the death of the testator, the devisee took possession of the land, and occupied it from that time till about the 22d of March, 1858, when it was conveyed to the lessor of defendant, by deed of the sheriff, in pursuance of a sale made on execution against the devisee, upon a judgment rendered after the death of his father. The defendant’s lessor has been in possession, or rented and controlled the land, ever since. After the execution of the' sheriff’s deed, and the taking of possession under it, on the 12th of September, 1861, the devisee executed to the plaintiff a general warranty deed, in fee for the premises. It does not appear that the devisee ever had any family
    The only issue made in the case, was as to the title or right of possession of the plaintiff.
    The court of common pleas found in favor of the defendant, and rendered judgment accordingly.
    On petition in error, the district court affirmed the judgment ; and it is to reverse the judgment of the latter court, that this petition is filed.
    
      J. M. &¡ M. May, for plaintiff in.error:
    The devisee had by this devise an equity only in the use of the land, and not in the land itself, and his equity could not be taken and sold upon execution at law, but must be proceeded against in equity. Rhodes v. Sims, 1 Ohio Rep. 314; Jackson v. Hallack, 1 Ohio Rep. 318; Silks v. Perine, 2 Lead. Cas. in Eq. 300; Talmage v. Sill, 21 Barb. 34; Johnson v. Cushing, 15 N. H. 298.
    A testator can not so devise his lands as to ’defeat his own creditors, but he may legally devise his real estate so that it can not be taken to pay the debts of another man. A testator is not bound, legally or morally, to provide for the payment of the debts of his devisee.
    
      T. W. Bartley, for defendant in error:
    The intention of the testator here to give his son Nicholas an estate in the land, for his own use, for a term of years, fully as great as his life, with the remainder to his legitimate children, is fully manifest, and effective. But the direction, that the estate should not be taken and sold to pay the debts of his son Nicholas, was simply inoperative and void, because against not only the policy of the law, but against the statutes of the state. 4 Kent Com. (marginal page) 335, note b; S. & C’s. Stat. 1063-4-5-6. These statutes, founded upon the great and controlling rules of public policy, can not be evaded by the mere phraseology of a devise in a will.
    In truth and in fact, no substantial and actual trust was created by this will; and the mere pretense of creating a trust by the circumlocution used, was plainly a mere shift to evade the laws of the state, making a man’s property liable to the payment of his debts.
    But admit that a trust was created in the devisee Nicholas, the entire interest, possession, use, and control of the land for a period greater than his lifetime was at the same time devised to him. The trust would be necessarily merged in the use and legal interest granted to Nicholas. 1 Grreenleaf’s Cruise, p. 384; Wade v. Paget, 1 Bro. C. C. 363.
    No doctrine is better settled than that, where the legal and equitable estates become vested in the same person,- the latter will be absorbed and merge in the former, for the manifest reason that a man can not be a trustee for himself. Cooper v. Cooper, 1 Halst. Ch. 5; Lewis v. Stark, 10 Sm. & M. 128; Ibid. 268; Mason v. Mason, 2 Sandf. Ch. 433; James v. Johnson, 6 J. C. R. 417.
    If a testator could protect the interests in real estate, devised to his children, from liability to the payment of debts, by simply connecting that interest with the declaration of a trust having reference to the course of descent most desirable to him, a very large portion of the real estate of the country would soon be 'covered with such kind of trusts, real or fictitious.
    The devisee, Nicholas Snyder, had an interest in this land liable to be sold on execution; it was sold and acquired by the defendant’s landlord, and is now held by him. The subsequent conveyance by Nicholas to the plaintiff gave him no title superior to that acquired by the sale on execution. If Nicholas could sell and convey to a stranger, and thus divest himself of all trust as to this particular land, why could not his interest be sold on execution ?
    A mere possessory interest in land may, it seems, be sold on execution. Scott v. Douglass, 7 Ohio Rep. (part 1), 228; 5 Ohio Rep. 48; 8 Ohio Rep. 21; Miner v. Wallace, 10 Ohio Rep. 403. And where a person, in addition to the mere possessory right, has the actual use in himself, for a time at least, as well as full power of control and disposition at pleasure over the land for his own benefit, it would be a novel doctrine to say that his interest was not such as to be liable to sale to pay debts.
   Welch, J.

This will is certainly a legal curiosity. The precise sense and meaning of much of its language is obscure, and some of it seems to be without sense or meaning at all. Its provisions are apparently conflicting, and they give rise to many curious questions of law. We are, however, relieved to find, that the present case does not require us to decide more than one or two of them.

The general object of the testator seems to have been, to give to the devisee an absolute ownership of the land, and yet to shield it from the payment of his debts. This is simply impossible. The law makes what a man owns — whether held by legal or equitable title — liable to the payment of his debts, unless it be property specially exempted. No legal acumen or skill Can evade this policy of the law, and as often as it is attempted it must result in one of two things — either in the devisee taking nothing by the will, or in leaving what he does take liable for the payment of his debts. The liability attaches to the ownership, and it is beyond the power of any draftsman to invent a form of devise, or conveyance, that shall separate them.

The only question in this case is, whether the plaintiff has the present legal title, and the consequent right of possession. It is not denied, that both of these were in the devisee at the time of the sale on execution, and that they both passed to the defendant’s lessor by sheriff’s deed. But it is claimed that they were defeated, or that they passed from him to the plaintiff, by the sale and conveyance subsequently made tc the latter by the devisee, under the power contained in the will.

The power given in .the will is one coupled with an interest. When that interest is divested, either by act of the party -or by law, the power, as to that interest, is exhausted, and ceases to exist; and then becomes only a power as to the interest of other parties. If the interest with which the power is coupled be the whole interest, then, of course, the whole power ceases to exist, upon the divestment of the interest. A grant of power to sell one’s own property is a mere nullity, because the power exists without the grant, and no disposition of that interest made by law, can be defeated by any subsequent exercise of the power.

What estate and interest, then, did the devisee have in this land, at the time of the sheriff’s sale ? He had the legal title, and right of possession, for the term of ninety-nine years, subject to be defeated only by his own voluntary act, and he was in actual possession. So much it is certain he had. What he had beyond the term of ninety-nine years, we need not now inquire. It will be time enough to decide that question after ninety-nine years shall have elapsed, and when his children, if he ever have any, shall claim to take the remainder in fee, as devisees, or, if there are no children, whenever the heirs of the testator shall claim it as a reversion descending to them.

It is true that, during the term of ninety-nine years, there is an obligation imposed — we do not say whether it rests upon him alone, or is in the nature of a charge upon the land — to support himself, and if he should ever have a “family,’’ to support it also. But he has no family, and he is surely bound to support himself, if not his family also, independently of the devise. If the right to support is to be held an equitable charge upon the land, it is enough, as to his equitable right, to say, that it merges in his legal estate, and passes with it under the sale on execution. As to the rights of the “ family,” it will be time enough to decide when one appears, and sets up a claim for support. When one does appear, or when, at the end of ninety-nine years, the children of the devisee, or the heirs of the testator appear, and set up a claim, then all these questions can be decided. At the end of the term, and not properly before, it can be decided how far the obligation to make improvements is binding in the face of the provision against impeachment for waste; in the face of the provision that he may sell and resell, and render no account to “ any person whatever,” or to any court,” for the purchase money; and in the face of the provision that he may dispose of the land by last will and testament, to whomsoever he pleases, not, however, to defeat the “ purposes aforesaid.” It can then be determined what those “ purposes aforesaid ” were— whether they are to be understood as bona fide looking to the benefit of the family, as between them and the devisee, or to the benefit of the devisee, as between him and his creditors. In short, it can then be decided whether the devisee does, or does not, take an absolute estate in fee in the land ; and if not, whether the family, or the heirs, must look to him, to his grantee, or to the land, for their indemnity. All these questions we leave undecided, as not necessarily arising in the present case.

But we are clear in the opinion that the present right of possession is in the defendant. We think the legal term for ninety-nine years, passed to his lessor by the sheriff’s deed, subject at most to an equitable claim for support, to be set up by some member of a “ family,” of devisee, during the term; and that it will be time enough to decide upon the validity of such claim when it shall be asserted. The subsequent exercise of devisee’s alleged power to sell, whatever effect it might have upon the remainder or the reversion, or upon the supposed equitable right of the family to support, worked no divestment or transfer of the title and interest of the devisee himself, already vested by the sheriff’s deed in the lessor of defendant.

The judgment of the district court is affirmed.

Brinkerhoee, C.J., and Scott, Day and White, JJ., con* curred.  