
    Webb v. Biles et al.
    
      (Decided May 2, 1927.)
    
      Mr. David Davis, Mr. Herbert G. Jacobson and Messrs. Barnes, McKenna & Halsied, for plaintiff in error.
    
      Messrs. Pogue, Hoffheimer & Pogue, for defendants in error. 1
   Cushing, J.

Elizabeth Voight Webb, in an action against Hannah M. Biles and others, prayed for a construction of the will of John Webb, Jr., and that the court instruct the trustee as to her duty in managing and distributing the estate.

The trial court sustained a demurrer to the petition, dismissed the action, and entered judgment for costs against the plaintiff. This action is prosecuted to reverse that judgment.

The will and codicil are pleaded. John Webb, Jr., executed a will October 8,1902, added a codicil June 8,1904, and died August 27,1904. The will was probated.

Mary Webb, testator’s widow, died in 1914. John Benjamin Webb, a son, died without issue October 29, 1923. He left a will in which he devised all his property, real and personal, to Elizabeth Yoight Webb, the plaintiff. At that time the trustee under the will of John Webb, Jr., retained a large amount of personal and real property.

Hannah M. Biles, after qualifying as executrix and trustee, collected the income from the estate of John Webb, Jr., and annually distributed it to John Benjamin Webb, Harry Storrs Webb, Hannah M. Biles, and Lydia P. Sims, one-fifth each; to Ruth Neidig and Marie Matthews, children of Mary Rebecca Sorin, one-tenth each.

After the death of John Benjamin Webb, the said trustee divided the income into four parts, paid it to the distributees other than plaintiffs, and refused to pay any part of it to her.

In sustaining the demurrer, the trial court construed the will, and held that Elizabeth Voight Webb was not entitled to receive any part of the estate of John Webb, Jr.

The question is whether John Benjamin Webb had a vested or contingent interest in the property devised by John Webb, Jr.

An estate is vested when there is an immediate right of present enjoyment, or a present fixed right of future enjoyment. “But, where the payment is deferred for reasons personal to the legatee, the gift will not vest till the appointed time.” Scofield v. Olcott, 120 Ill., 362, 11 N. E., 351.

The title to all the. property vested in the trustee on.the death of John Webb, Jr. Aside from managing the estate, paying expenses incident thereto, the trustee was charged with four duties':

(1) To provide for the support, comfort, and convenience of Mary Webb, his widow, and to use the remainder of the net income to pay off the mortgage indebtedness on his real estate.

(2) At the death of Mary Webb, to deed specific real estate, described in item 13 of the will, to John B. Webb, Mary Rebecca Sorin, Henry S. Webb, Lydia P. Sims, and Hannah Mary Biles. But, in case of the death of any of his children, previous to the death of his wife, the share of such shall be deeded to the issue of such child, and, if there is no such issue, said real estate shall become a part of the residuary estate.

(3) To pay the mortgage indebtedness and all ' claims against his property out of the income from the real estate.

(4) To sell the property, pay the legacies, and distribute the estate.

As to this property, there was no immediate right of present enjoyment, nor a present fixed right of future enjoyment. The two contingencies were that said children he alive at the happening of the future event, or that they leave issue.

The residuary estate vested in the trustee under item 7 of the codicil:

“All the remainder of my estate, personalty and realty and choses in action, I give, bequeath, and devise to * * * Hannah M. Biles * * * in trust for the uses and purposes hereinafter mentioned and declared.”

Item 14 of the codicil contains the declaration:

“Fourteenth: I direct my said trustees to hold, manage and control the remainder of my real estate, and use the net income thereof in discharging and paying all mortgages and obligations thereon, and all other claims against the same. When all claims against the said real estate are paid, I direct my said trustees, or the survivor of them, to sell the said real estate, and out of the proceeds thereof pay the legacies given in my will above mentioned and described, and to pay the remainder of the entire proceeds of said real estate and all moneys belonging to my estate, in their hands, share and share alike, to my five children, John B. Webb, Henry Storrs Webb, Hannah M. Biles, Mary Rebecca Sorin, and Lydia P. Sims, and to the issue of any deceased child per stirpes. If my children shall desire to hold the said real estate without having the same sold, I direct my said trustees to manage and control the same until the net income thereof shall be sufficient to pay off said legacies; then said trustees are directed to pay said legacies, and thereafter immediately convey and deed all of my real estate and any moneys that may remain in their hands, to my said children and the issue of any deceased child, share and share alike, per stirpes.”

Out of the net income the trustee was to pay the mortgages and all other claims. She was then directed to sell the real estate, and out of the proceeds to pay the legacies, and next to pay the entire proceeds of said sale to his five children, and to the issue of any deceased child, per stirpes.

The interest of the distributees was contingent and did not vest until the period of distribution. Barr v. Denney, 79 Ohio St., 358, 87 N. E., 267.

The next question is, Has the date for distribution arrived; can it be ascertained;'and, if so, when was it, or when will it be?

The trustee was not vested with discretion, other than as to the amount of money that could be paid for the support, comfort, and convenience of Mary Webb. The period of discretion ended in 1914, on the day Mary Webb died.

Prom the only record before us, the trustee at no time used the net income from the estate to pay off the mortgages. On the contrary, the trustee, without direction, right, or authority, distributed the income to the persons, if living, or their issue, if there were such as would be entitled to receive the same when the period of distribution arrived.

The petition does not state the amount of the mortgages, nor the net income that has been received, and is now being received, from the estate. Whatever it has been, it should have been applied, as received, to the payment of the mortgages.

If it had been so applied, as received, the mortgages would either have been paid at a date prior to the death of John B. Webb, or the date when such payments would have liquidated the mortgages would be apparent. The purpose of determining the period of distribution is to fix the date of the vesting of the title.

The mortgage indebtedness at the date of the death of John "Webb, Jr., should be ascertained. The amount of interest paid on those mortgages from that date to the date of the death of John Benjamin Webb should be computed. The amounts paid annually by the trustee to the distributees should be taken, and added thereto should be interest at the same rate that was paid on the mortgages, provided that rate is the same or less than the legal rate of interest, and these annual payments, with interest, should be considered as having been paid on the mortgages. The date of distribution would then be the date when the total of these annual payments, plus interest, equaled the amount of the mortgage indebtedness. The date, so determined, would fix the period of distribution, and the vesting of the title in the distributees.

If the date so determined is prior to October 29, 1923, the day on which John Benjamin Webb died, the plaintiff would be entitled to the distributive share of her deceased husband. If the date on which the mortgage's would have been paid is subsequent to October 29,1923, she cannot have any share of the estate of John Webb, Jr.

A sentence in Item 14 of the will gives the children of John Webb, Jr., the option to hold the real estate, in which case the trustee shall deed it to them. Whether or not that option has been exercised cannot be determined under the state of the record.

The trustee, immediately after the date determined, as aforesaid, should sell the property, pay the mortgages and legacies,, and distribute to the distributees their share of the estate.

For the reasons above stated, the judgment of the court of common pleas will be reversed, and the cause remanded for proceedings according to law.

Judgment reversed and cause remanded.

Buchwaltbr, J., concurs.,

Hamilton, P. J.,

concurring. . I concur in the conclusion that the trial court erred in sustaining the demurrer to the petition. However, I incline to the view that the legacies in question vested either at the death of the testator or upon the death of the surviving widow, but reserve my conclusions as to the time of 'vesting until all of the controlling questions can be brought before the court.

On Application for Rehearing.

Cushing, J.

On application for rehearing, counsel cite the case of Devoss v. Gray, 22 Ohio St., 159, and quote the following:

“If the plaintiff’s petition be adjudged insufficient upon demurrer, and no leave to amend be asked for, it is not error to proceed to final judgment against the plaintiff, without .granting leave to amend.”

The foregoing statement of law is so well settled that we do not consider it necessary to repeat it, or to discuss in a technical way the statements in the petition with regard to whether there was a cause of action stated.

The demurrer, in searching the record, pointed out that the will and codicil of John Webb, Jr., were pleaded; that they created a trust, and provided for a trustee; that the action below was brought under Sections 10857 and 10858, General Code; that the petition states that John Benjamin "Webb was a son of John Webb, Jr., and one of the distributees under said will; that John Benjamin Webb died October 29,1923, leaving a will by which he gave to Elizabeth Voight Webb, his widow, this plaintiff, all his property, both real and personal; that John Benjamin Webb died without issue. And after stating facts relating to the making of the will, and the acts of the trustee, the petition recites that the trustee for about 22 years, after paying the taxes and necessary expenses, made annual division of the rents and profits of the estate of John Webb, Jr., to the five persons named as his children, John Benjamin’Webb being one of them; that, subsequent to the death of John Benjamin Webb, said trustee refused to distribute any part of said income to this plaintiff; and that a dispute arose between the plaintiff, the trustee, and the other legatees under the will and codicil of John Webb, Jr., as to the construction of said will and codicil. And this plaintiff further states that, under the said codicil, she is entitled to participate in the distribution of said estate, as the widow, of John Benjamin Webb, a devisee under his will and codicil.

Section 10857, General Code, provides for the bringing of an action by an executor, administrator, guardian, dr other trustee, asking the direction and judgment of the court in any matter respecting the trust estate, the. property to be administered, and the rights of the parties in interest.

Section 10858, General Code, provides that, after being requested in writing by a creditor or other party in interest to bring such action, and a failure for 30 days to so do, such other party making such request may institute the suit.

Section 10581 provides for the distribution of an estate on the death of a devisee or legatee, and contains this provision:

“If such devisee leaves no such issue, and the devise be of' a residuary estate to him or her, and other child or relative of the testator, the estate devised shall pass to, and vest in such residuary devisee surviving the testator, unless a different disposition be made or required by the will. ’ ’

Under the allegations of the petition and the provisions of the section of the statute referred to, it became necessary to construe the will in order that the trustee could make distribution, as provided in the codicil. Incidentally, it became a question whether Elizabeth Yoight Webb, devisee under the will of John Benjamin Webb, had, or could have, an interest in the estate of John Webb, Jr.

The language of Section 10581, “unless a different disposition be made or required by the will, ’ ’ having been pleaded, and the duties of the trustee defined, the. vesting of the residuary estate in the devisees at the period of distribution would determine the question whether John Benjamin Webb was vested with the property bequeathed to him under his father’s will, so that he could devise it.

If it be claimed that, by the failure of the trustee to perform the duties imposed by the will and codicil, the legacy to John Benjamin Webb lapsed, and that the estate vested in the survivors, and therefore he had no interest that he could will to the plaintiff, the decision in the case of Larwill’s Executors v. Ewing, 73 Ohio St., 177, 76 N. E., 503, would govern, wherein it was held that the statute does not apply, if to give it effect would defeat the declared intention of the testator.

In my former opinion, which I hereby adopt, it is stated that the intention of the testator was-clear. It was that Mary Webb should be provided for; that certain specified real estate should be transferred, after her death, to his children named; that the income should be used to pay off the mortgages; that the property should be sold, the legacies paid, and distribution made.

The petition states a cause of action under the statute.

The application for rehearing will be denied.

Application denied.

Hamilton, P. J., and BuchWalter, J., concur in denying the application for rehearing.  