
    Common Pleas Court of Montgomery County.
    Frank B. Reibold v. Margaret R. Craig-McKerrow, et al.
    
    Decided October 18, 1933.
    
      Sigler & Denlinger, for plaintiff.
    
      Scharrer, Scharrer, McCarthy & Hanaghan and James B. O’Donnell, for defendants.
    
      
      Affirmed by Court of Appeals.
    
   Snediker, J.

This case is before the court on a demurrer to the first and second defenses set up in the answer of Fred E. Reibold on the ground that neither of them constitute a valid defense to the right of action set up in the plaintiff’s petition herein.

This is an action for partition of certain property located in this city and the plaintiff claims that on September 19, 1933, the date of the filng of his petition, he had a legal right to and was seized in fee simple of an undivided one-fourteenth part thereof. The property was originally owned by Louis Reibold who died testate on September 19, 1908. By his last will and testament it was provided that the real estate sought to be partitioned should be held in trust. With respect to that the language of the will is, in part, as follows:

“And I hereby direct that my executor and trustee aforesaid keep the same together, that it remain as a whole, and that it be not sold or partitioned or divided for a period of twenty-five years after my decease, and for said term of years I will and direct that the same be held and managed as one property and as an entirety by said executor or trustee as aforesaid.”

The first defense of the answer in this case sets forth this trust and the language of the will which we have quoted and concludes:

“Defendant further says that the plaintiff herein filed said petition on September 19, 1933 at 7:54 a. m. in the Court of Common Pleas of Montgomery county, Ohio, and that said plaintiff is without right, either in law or equity, to the filing of said petition and to the relief therein prayed for; and that the Court of Common Pleas of Montgomery county, Ohio is without jurisdiction for the hearing of the same or the granting of the relief therein prayed for.”

Did the plaintiff have the right and was he in such possession of the property on the day he filed his petition as qualified him to be party plaintiff herein?

Possession, or immediate right to possession, is essential to the right of partition. 99 Ohio St., 20; 35 Ohio App. Rep, 526. The testator fixes the time at which partition or division may be made of the property, as “twenty-five years after my decease.” In ascertaining the very date intended by the testator we must apply the rules with reference to computation of time.

The most recent decision on the subject is found in the case of Neiswander et al v. Brickner et al, 116 Ohio St., 249, in which our Supreme Court overruled Kerr v. Keil, 60 Ohio St., 607, on March 29, 1927. In the opinion, quoting with approval, the court said:

“We think the question is concluded for this court by the case of State v. Elson, (77 Ohio St., 489), where the court held that the first day should be excluded and the last day should be included in the period in question * * *.”

Referring to State v. Elson, we find Judge Crew quoting from the 49 L. R. A., pages 193 to 248, with approval, as follows:

“There seems to be one general rule with reference to counting the first and last days in the computation of a period of time which, subject to exceptions based upon the language of the provision for time or upon the surrounding circumstances, seems to have remained the same throughout the whole period of the common law and which remains practically the same under the statutes and rules of court. That rule is that .in computation of time one of the first and last days of the period shall be included and the other excluded. The question as to which of the two days shall be included and which excluded, however, has been differently decided in different periods and different jurisdictions and has given rise to much conflict of opinion. The general common law rule as it originally existed was that the first day was to be counted when the computation was to be from an act or event, but that it was not to be counted when the reckoning was to be from a day or from the day of an act or event. The modern decisions have changed the rule and, in the absence of a statute or rule of court controlling the question, the courts now compute time, as a general rule, by excluding the first day and including the last day. * * * This rule was subsequently put in statutory form or adopted as a court rule in most jurisdictions. But in construing the statutes and rules, though the courts could not depart from or change the language used, they generally construed them to be a re-enactment of the common law rule on the subject and held them to be subject to the same exceptions; and the general rule now existing, whether at common law or under the statutes, probably is that the first day of a period of time is to be excluded and the last day is to be included, but that either or both days may be either included or excluded if the language of the provision for time is such as to require it or if by so doing a penalty of forfeiture will be avoided. These rules are held generally to apply to all cases. * * It must, we think, be conceded In obedience to the clear weight of authority that in the absence of language compelling the application of a different rule the established general rule governing the computation of time, whether at common law or under the statute, is that the first day of the period named is to be excluded and the last named day is to be included, and that this rule applies alike to all provisions for the computation of time whether in civil or criminal cases.”

In a case found in 15 Vesey (Chancery Reports), where there was a bequest of a residue in trust in case A shall within six months after the testator’s decease give security, etc., the master of the rolls in deciding the question of time said:

“It is not necessary to lay down any general rule upon this subject, but upon technical reasoning I rather think it would be more easy to maintain that the day of an act done or an event happening ought in all cases to be excluded than that it should in all cases be included. Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of indivisible point; so that any act done in the compass of it is no more referrible to any one than to any other portion of it; but the act and the day are co-extensive; and therefore the act cannot properly be said to be passed until the day is passed. This reasoning was adopted by Lord Rosslyn and Lord T'hurlow in the case before mentioned of Mercer . v. Ogilvie. The ground on which the judgment of the Court of Session was affirmed by the House of Lords is correctly stated in the fourth volume of the Dictionary of the Decisions of the Court of Session. In the present case the technical rule forbids us to consider the hour of the testator’s death as the time of his death; for that would be making a fraction of a day. The day of the death must therefore be the time of the death; and that time must be past before the six months can begin to run. The rule contended for on behalf of the plaintiffs has the effect of throwing back the event into a day upon which it did not happen, considering the testator as dead upon the 11th, instead of the 12th of January; for it is said, the whole of the 12th is to be computed as one of the days subsequent to his death. There seems to be no alternative, but either to take the actual instant, or the entire day, as the time of his death; and not to begin the computation from the preceding day.”

So that we see, from a case where the same phraseology is used, that the rule which our Supreme Court is now following has been in existence at least for more than a century.

In the case of Semis v. Leonard, 118 Mass. Reports, the first syllabus is:

“In computing time from the date or from the day of the date, or from a certain act or event, the day of the date is to be excluded unless a different intention is manifested by the instrument or statute under which the question arises.”

In the opinion in the case of Sands and wife v. Lyon, 18 Conn. Rep., 18-26, Judge Storrs uses language very much like that which we have already quoted from 15 Yesey. It is as follows:

“If the will is to be construed literally the computation must be ele momento in momentum, commencing with the precise moment of the day when the testator died. But it is conceded that this mode is not to be adopted because it would be opposed to a well established maxim of law that there is no fraction of a day, it being considered an indivisible point of time, a technical rule founded in convenience and which is not to be departed from excepting when, in particular cases, justice requires that the exact time when several acts were done should be ascertained; as, for instance, in order to determine a question of priority of right between parties; in which case the maxim is disregarded on the principle that a fiction of law shall never be allowed to work a wrong; and therefore, in such cases the exact time of doing the act may be shown; an exception to the rule which does not apply to the present case. It results from this maxim, that In the computation of the year, in the present case, the whole day of the death of the testator must be either excluded or included; and that, therefore, the defendant is to be allowed somewhat more or less time for performing the condition of the devise to him, than the time mentioned in the will, if it were to receive a strict literal construction. As such a construction of the will must be discarded, the language of the devise must be construed according to the sense and meaning in which its language is commonly used and received among mankind, which is presumed, in the first instance to be the sense in which it was intended to be used; or else in some other and peculiar sense, if such appears to have been the meaning intended by the testator; or, if construing the language according to its ordinary meaning, where it is not used in any peculiar sense, his intention is left doubtful, in such a manner as will most probably carry into effect such intention; or else in some artificial or technical sense attached to it by the law.
“In every point of view in which this subject can be considered, we are of opinion that the day of the testator’s death, in the present case, should be excluded in the computation of the time within which the defendant was required to make the payment of money mentioned in the devise in question. * * *
“The word ‘after,’ which is used in the devise we are considering, like ‘from,’ ‘succeeding,’ ‘subsequent,’ and similar words, where it is not expressly declared to be exclusive or inclusive, is susceptible of difffferent significations, and is used in different senses, and with an exclusive or inclusive meaning, according to the subject to which it is applied; and, as it would deprive it of some of its proper significations to affix one invariable meaning to it in all cases, it would, of course, in many of them, pervert it from the sense of the writer or speaker. Its true meaning, therefore, in any particular case must be collected from its context and subject matter, which are only means by which the intention is ascertained; and we do not entertain a doubt that, by the language of the testator in the present instance, it would be generally understood that the payment mentioned in the devise was to be made within a year after the day of the testator’s decease, excluding that day in the computation, rather than that it was to be made within a year after the day preceding his decease. * * *.”

And in the instant case, guided by our own Supreme Court and by some of the many authorities which we consulted, taking a like view, we are constrained to hold that in the computation of the twenty-five years after the decease of Louis N. Reibold the day of his death should be excluded and the last day of the twenty-five years should be included in making up that time; and, so considered, plaintiff’s petition was prematurely filed.

As to the second defense, we are not of the opinion that the lease referred to therein would have precluded the plaintiff from filing his petition had he otherwise been legally qualified to do so.

As stated by the Supreme Court of Illinois in the case of Blakeslee, Appellee, v. Blakeslee, Appellant:

“The fact that the real estate sought to be partitioned is leased to a tenant for a period of ten years with an option to purchase, does not deprive the co-tenant of his right to partition, in the absence of any other circumstances tending to show an estoppel upon his right.”

The demurrer is therefore sustained as to the second defense and overruled as to the first defense.

Another question has presented itself to us: Can this plaintiff, as one of the cestuis que trust whom we have before held had a vested interest with postponed enjoyment while the trust is in existence, bring an action in partition? ; • -

Lawrence in his work on 'Equity Jurisprudence says:

“He (cestui que trust) cannot maintain a proceeding for partition of the trust estate while the trust remains active, even though the property might be made more profitable thereby.”

An entry may be drawn in conformity with the foregoing.  