
    TITLE TO UNDIVIDEDJINTEREST IN REAL ESTATE.
    Circuit Court of Hamilton County.
    Helen Betts Hamilton v. Thomas B. Stone et al.
    Decided, November 19, 1910.
    
      Quiet Title — Construction of Will Incidental — Jurisdiction of Superior Court — Presumption as to Validity of Judgment by Probate Court— Inconsistent Provisions of Will — Section 10857.
    
    1. Where the action is to quiet title, and the construction of a will is but incidental to the main issue, the Superior Court of Cincinnati has concurrent jurisdiction with the Common Pleas.
    2. In the absence of evidence to the contrary every presumption is in favor of the validity of a judgment by the probate court, where jurisdiction over the subject-matter has been shown.
    3. The two provisions of the will in this case are inconsistent and repugnant and can not stand together, and while there is no good reason why- the later provision should defeat the express devise which precedes it, some ground appears for upholding this devise, which entitles plaintiff to a decree quieting her title as against control thereof by the administrator de bonis non.
    
    
      Charles B. Wilby and Charles Phares, for the plaintiff in error.
    
      Sayler & Sayler, contra.
    Giffen, P. J.; Swing, J., and Smith, J., concur.
   The prayer of the amended petition, as well as the cause of action stated, is to quiet the title of the plaintiff to an undivided interest in a life estate in certain real property, and the construction of the will of Smith Betts is but an incident of the main issue, the will being evidence of her title; hénce the action is not brought under Section 6202, Revised Statutes (10857, General ' Code), which gives exclusive jurisdiction to the court of common pleas, but one in whieli the Superior Court of Cincinnati has concurrent jurisdiction.

The judgments of the probate court relied upon as a bar to this action embrace the overruling of exceptions to the account of the administrator de bonis non with the will annexed and of the motion to remove him as such administrator. The decision of the court upon the exceptions did not determine the right of the administrator to act as a testamentary trustee in controlling the life estate in which the plaintiff has an undivided interest. It did determine however that the appointment of Thomas. B. Stone as administrator was necessary and made by authority of law. There is no item excepted to which shows that he collected rents or controlled or managed the real estate of the plaintiff. The probate court had jurisdiction of the subject-matter, 'and every presumption, in the absence of evidence to the contrary, is in favor of the validity of its judgment.

The decision of the court upon the motion to remove the administrator may have been based upon a finding that there were assets of the estate not yet administered, and at the same time the court may also have found that there was no trust estate to be administered by him as trustee. In neither decision do we find that the court necessarily passed upon the question of the right of the executors or the administrator to act as testamentary trustees in controlling the real estate described in the petition. It follows therefore that the court- erred in overruling the demurrer to the second and third defenses of the answer.

The question still remains whether, upon issue joined by the amended petition and the first defense of the answer, the will of Smith Betts authorized and empowered the executors or administrator to manage and control, as trustees, the real estate devised to plaintiff and the other children of the testator by item four,- to-wit:

“On the death of my said wife Cynthia A. Betts, I give, devise and bequeath my entire remaining estate for use .during their natural lives to my children, Mary Helen, Stanley, Fannie, Edwin, William and Charles; at their death to their children in fee simple, my estate to remain intact and not to.be divided until all of my said six children are dead;' the children of any of my said six children to take their parent’s share and my said six children to take share and share alike. In the event of thé death of any of my said six children leaving no children then my surviving children named in this item to take said child’s share, share and share alike and my executor and executrix are trustees'under this will for all its purposes.”

This is a complete disposition of the estate for and during the natural lives of the children, although restricted in its use by forbidding a division of the same. The last clause relating to trustees does not in terms nor by implication give the executors control of the real estate.

The sixth item of the will empowered the executors to sell or lease any part of the estate and is repugnant to and inconsistent with the devise to the children. Th& two provisions can not stand together, and there seems to be no good reason why the later provisions should defeat the express devise made before, •while there is some reason for holding that the testator intended to make this provision operative during the life of the widow only or as to such contracts and privileges of purchase as were made and granted by him during his lifetime.

The plaintiff is therefore entitled to have her title quieted as against the control of the same by the administrator de bonis non with the will annexed. The judgment will be reversed and judgment entered for plaintiff in error.  