
    Durfee v. MacNeil, Etc.
    
      Will — Devise of land to the two children of testator — Proviso: Should either die without heirs, share o f decea sed to go to survivor— Vests in each an estate in fee.
    
    1. A devise of lands to the two children of the testator, with the provision that “ should either die without heirs capable of inheriting, all such one’s share and legacies under this will shall inure to the survivor,” vests in each an estate in fee determinable upon the contingency of death without children; and, upon that contingency, the estate of the deceased child passes to the other by way of executory devise, although the deceased child leaves a husband surviving her.
    2. The survivor of such children having, in the lifetime of the other, rendered to her accounts of the proceeds of the sale of such lands and executed notes in consideration of balances thereof, did not thereby waive any right vested in him by the will; and after the determination of the estate of the deceased child he will be exonerated from the payment of notes given upon such consideration.
    (Decided March 29, 1898.)
    Error to the Circuit Court of Marion county.
    The original cause was taken by appeal from the common pleas to the circuit court where it was heard and determined on the pleadings and the evidence.
    MacNeil sued as the executor of the will of his deceased wife, Alice Durfee MacNeil, alleging in substance that the defendant, Elisha Brightman Durfee, was her older brother in whom she had always reposed entire confidence; that during her absence for a number of years in New England and Europe she had entrusted him with the entire management of her estate which consisted chiefly of lands in Ohio and Illinois, that he received all the rents thereof and the proceeds of sale of portions thereof which she had conveyed upon his advice executing deeds by him drawn and sent to her for that purpose; and that while he had from time to time made payments on her account and remittances to her, he had never made to her or her executor a full and correct statement of his receipts and disbursements, nor had there ever been a settlement thereof, and praying that the defendant be required to account fully for all moneys so coming into his hands.
    The defendant answered at great length admitting the relations of confidence existing between him and his sister while she lived, that he had managed her property during the years of her absence receiving the income thereof and the proceeds arising from the sales of portions thereof and stating in detail the account of receipts and expenditures on account of the trust and his remittances to her, and showing that he had fully accounted to her for all moneys so received by him in the trust relation.
    Some of the allegations of the answer were denied by the reply.
    
      The court found that the allegations of fact contained in the answer were true, and upon the facts specially found it rendered judgment in favor of the defendant upon all of the numerous matters involved in the controversy except as to a note for $5,000 with coupon interest notes attached, and the further sum of $221.92 with respect to which it rendered judgment against him. His petition in error here is for a reversal of that judgment.
    Of the voluminous facts appearing upon the record the following affect the questions presented: The plaintiff in error paid to and for his sister the entire income of the property which was the subject of the trust and large sums in excess thereof. The controversy concerns a portion of the proceeds of sales received by him and now claimed by him under the executory devise in the will of Bradford R. Durfee. The plaintiff in error and Mrs. MacNeil were the only children of Bradford R. Durfee who died in the military service of the United States, February 22, 1863, leaving a will which he had executed March 17, 1862, and which was afterwards admitted to probate. The twentieth item of the will defines the interests of these parties in the lands whose proceeds are in controversy, Mrs. MacNeil being the unborn child mentioned in the item, which is as follows:
    Item 20th — I give and bequeath all the balance of my estate after defraying expenses to be divided equally between my wife, Pauline M. Durfee, Elisha Brightman Durfee and the child with which my wife is now enceinte, share and share alike and to their heirs forever, and should the child with which my wife is enceinte not be born alive, or should either die without heirs capable of inheriting, all such one’s share and legacies under this will shall inure to the survivor and should I be without heirs of my body then the legacies of my children shall vest in my wife.”
    Alice was born October 27, 1862. She intermarried with Neil Nicolson MacNeil, Sept. 15, 1892, and died Nov. 3,1893, leaving no child or other lineal descendant, the only child born to her having died before her. She left a will by whose provisions she constituted her surviving husband executor and devisee in fee of her entire estate.
    From time to time during’ the continuance of the trust the plaintiff in 'error charged himself with proceeds of lands sold as well as with income thereof; and on March 21, 1891, in consideration of such proceeds of sale in his hands he delivered to his sister a note for $5,000 executed by himself to one J. E. Palmer and by the latter endorsed without recourse. This note not being paid, the circuit court adjudg’ed that he pay the amount of it to the executor of his sister.
    Scofield, Durfee <& Scofield, for plaintiff in error.
    What was the intention of the testator? We claim that the estate devised by Bradford R. Durfee to his two children, in all of the property which passed under the will to them was a fee simple defeasible, as to the interest of either child, in the event that he or she die without children at any time, and that the property should then pass over to the surviving brother or sister, in fee simple indefeasible, by way of executory devise, and that the clause “should either die without heirs capable of inheriting,” refers to the death of either without children at the time of so dying, whenever that should occur.
    
      The words “heirs capable of inheriting” in this connection in this particular will, whatever they may mean in other connections, can bear but one possible interpretation. In this will survivorship is prescribed between definite persons, naming them. . They are brother and sister. One of those persons could not die without heirs and leave any survivor unless heirs were restrained to mean lineal descendants at most; the only possible survivor being just over the line and the nearest collateral heir.
    This line of reasoning in the interpretation of wills was elaborately developed by the great Justice Story in the case of Lippet v. Hopkins, 1 Gallison, 454, in the year 1813; Myers’ Fed. Dec., Vol. 16, page 762; Goodridgev. Goodridge, 1 Willes, 369 Mich. Term, 16 Geo. 2, 1742; Nottingham v. Jennings, IP. W., 23; Hilary Term, 15 Geo. 3., B. R., 1775; Morgan et al. v. John Griffiths, 1 Cowper, 127; Nightingale v. Barnhill, 15 Pick., 104.
    The law in Ohio, commences in 1856 with the case of Parrish's Heirs v. Ferris et al., 6 Ohio St., 563, six years before the will in question.
    Following the Parish case was the case of Niles v. Gray, 12 Ohio St., 320, decided in 1861. Then comes the case of Taylor v. Foster, 17 Ohio St., 166, in 1867, 22 Ohio St., 255.
    We also rely on the case of Summers v. Smith, 126111., 645, 21N. E., 191; Oranev. Coivell, 2 Curt., 178. The latest cases are: Glover v. Condell-, 45 N. E. R., 173, and Strain v. Sweeney, 45 N. E. R-, 201.
    Did this plaintiff in error by his manner of dealing with the property abandon his right by ex-ecutory devise? We maintain, and it . has always been held, that it will not be presumed without evidence that a person intends to abandon anything valuable. Peckser v. Warner, 22 Ohio St., 275. But in view of the Acts of April 4,1859, March 30,1864, and April 13, 1865, providing for the sale of entailed and conditional estates found in Laws of Ohio, 1859, pages 154-5-6,-1864, Vol. 61, pages 80-1, 1865, Yol. 62, page 184, a much less violent explanation could be made of the transactions of the parties in interest in their dealings with this property.
    Sections 5803, 5808 and 5810, Revised Statutes.
    It is claimed that the way the accounts were kept and statements of account made, works an estoppel under the circumstances. We have even found a case that holds the contrary, although it is surprising that such a question was ever made. Fogarty v. Fogarty, 22 Can. S. C., 103; 8emmig v. Merriheio, 30 Atl. R., 691.
    The plaintiff below claims that the note ‘ ‘belongs’ ’ either “to him or to his assigns” and that the defendant below “is now bound to pay to plaintiff” below “or his order the full amount secured by said note and - mortgage.” Miller v. Peters, 25 Ohio St., 270.
    The note became the property of the plaintiff in error by executory devise, before the defendant in error was appointed executor, or came into possession of the note, which was then in the custody of August Belmont & Co., in New York. BeValengin’s Administrator v. Buffy, 14 Peters, 281.
    The same principles are developed in the cases of Lapham v. Martin, 33 Ohio St., 99; Martin v. Lapham, 38 Ohio St., 538.
    As to the power of Ohio courts in the premises. Ohever v. Wilson, 76 U. S. (9 Wall., 108) and 19 Law Ed., 604; Bobson v. Pierce, N. Y. Ct. App., 12 N. Y., 170; 2 Kern., 270; Pomeroy’s Eq. Juris., Vol. 1, section 254, and Vol. 3, Idem, section 1371; Meadv. Merritt,2 P&ig&, (N.Y. Chancery) 401; Burnley v. Stevenson, 24 Ohio St., 474; Pierce v. Ilayxoard, 14 Ohio St., 302; Randall v. Pryor, 4 Ohio, 424.
    
      J. F. Me Reed <& Sons and Philip Rathcoway, for defendant in error, did not file a brief.
   Shauck, J.

It is entirely clear that by the terms of the will of Bradford R. Durfee, each of his children took an estate in fee simple in the lands devised, determinable, however, upon the contingency of death “without heirs capable of inheriting;” the estate, upon that contingency, to pass to the survivor by way of executory devise. Did this contingency occur as to Mrs. MacNeil; or is her surviving husband her heir within the meaning of the testator?

Under our present statute of descents and distribution the lands of a married woman who dies in testate and leaving no children or their representatives pass to her surviving husband, and he is entitled to her personal estate. He may, therefore, with strict regard to the significance of the term, be designated as her heir. But from the fact that the estates of deceased persons usually descend to their children, the term heirs is frequently regarded as synonymous with children. It would be unprofitable to analyze, or even to cite, the numerous cases in which the term has been held to have been used in its general sense to designate any one capable of inheriting, or in its limited sense to designate children, as the testator’s intention may appear from the scheme and all the provisions of his will. The flexibility of the term and the duty of the court to ascertain its meaning from a consideration of the entire will are brought into clear view in Jones v. Lloyd, 33 Ohio St., 572, where it was held that the testator’s widow was not entitled to participate in a provision in favor of his heirs, although if he had died intestate she would have been his sole heir.

Since a brother is an heir in the general sense of the term, the provision that the estate of Mrs. MacNeil should, upon her death without heirs, pass to her brother by way of executory devise indicates that the term was not used in that sense. The testator could not have contemplated the death of one of his children without any heirs while the other survived. We think the testator used the term as meaning- children, and that to give effect to his intention we must hold that upon the death of Mrs. MacNeil, her estate passed over to the plaintiff in error by way of executory devise.

The judgment of the circuit court in favor of the plaintiff in error with respect to other property involved in the controversy suggests that this view of the testator’s intention must have prevailed there. We are not able to perceive any reason why the terms of the will should not control in the determination of the questions presented by the petition in error. The rights of the parties have not changed because of a change of the lands into money. The money arising from the sale of the land is subject to the testamentary provisions applicable to the land.

No estoppel arises against the plaintiff in error from the fact that he rendered accounts to his sister including proceeds of sale as well as income and paid her money or delivered to her notes on account of balances in her favor. This was his duty and his alleged failure to- perform it is the principal ground of complaint in the original petition. He could not anticipate the happening of the contingency which determined her estate. They held like estates determinable upon a like contingency, and until that occurred each was entitled as unconditional owner as against the other. The case presents no equitable ground upon which the plaintiff in error can be regarded as estopped to assert as to the money the rights which he might have asserted in the lands if they had remained unsold. Semmig v. Merrihew, 67 Vt., 38.

Upon the facts found by the circuit cou/rt, the judgment will be reversed and a final judgment will be rendered in favor of the plaintiff in error.  