
    Nimmons et al. v. Westfall.
    1. An authenticated transcript of a complete final record in the case was filed with the petition in error in the district court, and the clerk of the court, on his own motion, also placed the original papers and pleadings in the case among the files, without indorsing thereon additional file marks : Held, It was not error to overrule a motion to dismiss the petition in error for want of jurisdiction.
    2/ Where a husband devised real estate to his wife during her life, or while she remains unmarried, under which she takes possession and occupies the land with the knowledge of the heirs at law for a series of years after the time limited in which she may make her election, in the absence of a showing to the contrary she will be presumed to have made her election in fact.
    . 8. A testator by his will clearly vested the title to a specific portion of his real estate in his executors in trust, with directions to sell the land and distribute the proceeds equally among his heirs at law, and it is claimed the executors are vested with a like trust and direction in and over other real estate devised: Held, That the court, in order to ascertain and carry out the intention of the testator in that respect, will loot to the whole will and all its parts.
    4. W. devised to his wife, H., and his son, J. H. W., by a distinct and independent clause of his will, the use of certain real estate, during the life of H., or while she remained unmarried, and then provided: “ But at the death of my said wife, or if she should intermarry with any other person after my decease, it is my will that the said aforementioned and described farm shall be sold, and the proceeds of the same be equally divided between my children or their heirs forever ; or that they, my said children, divide said farm to suit themselves as they may think best Held, 1. By this devise, standing unaffected by the other provisions of the will, no trust estate is created in the executors. 2. Under this clause H. and J. H. W. take estates for life in the land described therein, determinable on the death or marriage of H., with remainder in fee to the heirs at law of the testator.
    5. The act of April 13, 1865, entitled “ an act supplemental to the act to authorize the sale or lease of estates tail and estates for life in certain cases,” by express provision extends and applies the acts of April 4, 1859, and March 3,1864, to all estates tail or for life, with remainder over to any other person or persons, and to all determinable estates which may be created by will, etc., after its passage.
    6. Under the act of April 4, 1859, and the acts supplemental thereto, the owner of the life estate in possession, created by will subsequent to April 13, 1865, may institute proceedings for the sale of both the life estate and the estate in remainder; and this may be done notwithstanding the'testator may have made special direction in his will for the disposition of the land on the determination of the life estate.
    7. The act of April 4,1859 (S. & 0.550), and the supplemental acts of March 30, 1864 (S. & S. 346), and April 13, 1865 (S. & S. 347), in so far as they affect and apply to estates created subsequent to their passage, are not in contravention of section 19, of article 1, of the constitution of this state.
    Error to the District Court of Huron county.
    This action was originally brought in the Court of Common Pleas of Huron county, by Hannah Westfall, widow of 'Harvey Westfall, and her son, Jacob II. Westfall, against the heirs at law and the executors of Harvey Westfall, praying for the sale and reinvestment of certain real estate described in the petition, under the acts authorizing “ the sale or lease of estates tail and for life in certain cases,” and acts supplemental thereto. Plaintiffs aver that they claim title to a life estate therein under the will of Harvey West-fall, who was the husband of Hannah , and father of Jacob II. Westfall, plaintiffs.
    The petition avers, among other things—
    “ That on or about the 25th day of August, a. d. 1869, Harvey Westfall, residing within the county of Huron, Ohio, departed this life, testate, leaving said-plaintiff, Hannah Westfall, his widow, and said Jacob II. Westfall, the husband of Emma Westfall, Sarah A. Starr, the wife of Stephen II. Starr, Mary E. Nimmons, the wife of Philip B. Nimmons, Florence Whitehead, the wife of Charles Whitehead, and Sidney O. Gibbs, the wife of David W. Gibbs, his sole heirs at law. . . .
    “ That all debts existing against said estate have been paid, and that said executors have in their possession and control property and dioses in action much more than sufficient to meet any demands that may be made upon them as such executors, and can, in no event, require any portion of the premises in the petition described to pay obligations or claims against or of the estate of testator.
    
      “ That the plaintiffs are in possession of said farm, and are unable to manage same in such a manner as to make it profitable, or even to keep it in as valuable a state as it has heretofore been, and it is depreciating’ in value constantly, by decay of buildings and other improvements.
    “ That the sale of said farm and the loaning or reinvestment of the proceeds as provided by law, will be greatly for the benefit of these applicants, and, as plaintiffs believe, will do no substantial injury to heirs in succession or expectancy. The proceeds of the sale of said farm will yield a net income of at least one-third greater than said farm will yield.”
    The defendants, Philip B. Nimmons and David "W. Gibbs, were appointed executors, and they qualified as such.
    A copy of the will and codicil was attached to, and made part of, the petition. They are as follows:
    
      “Item, First. — I give and devise to my beloved wife, Hannah Westfall, in lieu of her dower, the house and lot where we now reside, being the east half of lot No. 30, and also the west half of lot No. 31 (except an alley on the north side of said lot 31, ten feet wide), with the right of the gate-passage from lot 30 to lot 31, and with all the privileges and appurtenances thereunto belonging, situate in the corporation of the village of Plymouth, Huron county, Ohio, during her natural life ; and I also give and devise to her, my said wife, all the household furniture that may have belonged to me at the time of my decease, and also the sorraj. mare, the Buffalo buggy, the single harness, and one cow, during her natural life as aforesaid.
    
      “Item, Second. — I give and bequeath to my said wife and my son, Jacob H- Westfall, the use of my farm situate in New Haven township, Huron county, and State of Ohio, the same being the west half of lot No. 63, all of lot No. 64, and about fifty-eight acres, being the east part of lot No. 65, and also about seventy acres in lot No. 150, during the time that she, my said wife, remains my widow; but at the death of my said -wife, or if she should intermarry with any other person after my decease, it is my will that the said, aforementioned and described farm shall be sold and the proceeds of the same be equally divided between my children or their heirs forever; or that they, my said children, divide said farm to suit themselves as they may think best.
    
      “Item Third. — I devise and bequeath to my said wife and my son, Jacob TI. Westfall, the use of $2,000, during the time that my said wife remains my widow ; but at the time of the decease of my said wife, or if she should intermarry, then it is my will that said $2,000 be divided equally between my children, or their heirs, for their proper use forever. And it is my desire that Philip B. Nimmons, herein appointed by me as one of my executors, shall pay the proportion of the above-naméd $2,000 that may be going to my daughter, Sarah Ann Starr, as she may need the same from time to time, or any other property that may be going to her out of my estate in the same way.
    
      “Item Fourth. — I give and devise to my son, Jacob H. Westfall, and his heirs forever, the store house and lot on which it stands, being part of lots No. 43 and 44, in the village of Plymouth, and now occupied by Kilburn & Co., as merchants in the dry goods trade.
    
      “Item Fifth. — I do give and devise unto my daughters, Sarah Ann Starr, Mary F. Nimmons, Sidney Gibbs, and my son, Jacob II. Westfall, and my daughter, Florence Whitehead, or their heirs forever, an equal projDortion of the proceeds or avails of the following described real estate,' situate in Eaton county, and State of Michigan : The west half of the northwest quarter of section 18, the southwest fractional quarter of section 18, northwest fractional quarter of the southeast quarter of section 18, all of said lands being in town 4, and range 5, in Sunfield township, in said county ; and also one other lot of land situate in Montcalm county, State of Michigan, being the west half of southwest quarter of section 27, town 10, range 5, and all of the above tracts of land described contain about 380 acres; and also lot No. 2, in block No. 16, and lot No. 7, in block No. 129, in the city of Lansing, Ingham county, and State of Michigan; and it is nay desire that my executors herein appointed by me, shall apportion and distribute all of the property herein mentioned, to each and every heir herein named, according to this my will, and the strict rules of justice and equity.
    
      “Item Sixth. — I give and bequeath to each of my children, or their heirs, an equal proportion of my personal property (except that already disposed of to my said wife), that may be found in my possession at my decease, after deducting a sufficient amount to pay the expense of my last sickness and funeral charges, and raise a suitable monument to my memory after my burial.
    
      “Item Seventh. — I do hereby nominate and appoint Philip B. Nimmons and D. W. Gibbs executors of this my last will and testament, hereby authorizing and empowering them to compromise, adjust, release, and discharge, in such manner as they may deem proper, the debts and claims due me. I do also authorize and empower them, if it shall become necessary, in order to piay my just debts, to sell by private sale, or in such manner, upon such terms of credit or otherwise as they may think proper, all or any part of my real estate and deeds to purchasers to execute, acknowledge, and deliver in fee simple. I desire that no appraisement and no sale of my personal property be made (unless actually necessary), and that the court of probate direct the omission of the same in pursuance of the statute.
    “ I do hereby revoke all former wills by me made.
    “ In testimony hereof, I have hereunto set my hand and seal, this 15th day of August, a. d. 1868.
    “ Harvey Westeall. [seal.]
    “ Codicil. — Whereas, I, Harvey Westfall, on the 15th day of August, in the year 1868, made my last will and testament of that day, do hereby declare the following to be a codicil to the same :
    
      “Item First. — I do hereby make my desire known, and it is my will that Philip B. Nimmons, one of my appointed executors of my last will and testament, pay the proportion of the $2,000 (mentioned in item third of the will, to which this codicil is attached), that may be going to my daughter, Florence Whitehead, as she may need the same from time to time, or any other property that may be going to her out of my estate in the same way, the same as I have directed him, said Philip B. Nimmons, to pay to my daughter, Sarah Ann Starr.
    
      “Item Second. — I give and devise to my beloved wife, Hannah Westfall, the sum of $1,000, in lieu of the house and lot that I willed to her, described in item first in said will, to which this codicil is attached, to be paid to her out of the proceeds- of the sale of said homestead lot in the village of Plymouth, as described in said item first in said will.
    “ In witness whereof, I have hereunto set my hand and seal, this 5th day of June, a. d. 1869.
    “ Harvey Westfall, [seal.]”
    To this petition, Mary F. Nimm.ons and Philip B. Nimmons, in their personal right, and Philip B. Nimmons, as executor, interposed a general demurrer, assigning in each demurrer as causes therefor:
    1. That there is a defect of parties plaintiff therein.
    2. That there is a defect of parties defendant therein.
    8. That the petition does not state facts sufficient to constitute a cause of action in favor of the plaintiffs against these defendants, or either of them.
    The demurrers were sustained in the court of common pleas, and the petition dismissed.
    A petition in error was filed in the district court, to which was attached a full and complete transcript of the final record made up in the court of common pleas, “as found recorded in the law record of said court, volume 31,” etc.
    In the district court, Mary F. and Philip B. Nimmons moved the court to dismiss the petition in error, for the reasons :
    1. That plaintiffs did not file with their petition the original papers and pleadings in the case wherein the final judgment was rendered, which they ask this court to reverse.
    
      2. That before substituting for said original papers and pleadings the transcript of record which they attached to their petition, the court of common pleas which rendered said judgment did not by order entered on its journal require the said transcript to be substituted for the said original papers and pleadings.
    In support of this motion, defendants introduced the affidavit of B. P. Smith, clerk of both courts, who testified “that when the said plaintiffs filed their petition in error in the above entitled case in this court, they did not direct or request affiant to file with it the original papers and pleadings of the case, of which a transcript is attached to said petition; but affiant thinking it proper that they should be filed with the said petition in error, placed them with it in |he district court files, without any order of court or instructions from the plaintiffs or their attorneys, but did not indorse any filiug thereon in the district court.”
    The motion was overruled. Defendants excepted, and a bill of exceptions, embodying the affidavit of Smith, the clerk, appears in the record.
    On final hearing, the court overruled the demurrers, and reversed the j udgment below. To this j udgment of reversal the defendants excepted. It is now sought to have the judgment of the district court in overruling the motion to dismiss the petition in error and the judgment on the demurrers reversed. To that end it is here assigned for error:
    1. That the district court erred in overruling the motion of Mary E. and Philip B. Nimmons therein to dismiss the petition in error of Hannah and Jacob H. Westfall.
    2. That the district court erred in proceeding to hear and determine the ease on petition in error of Hannah and Jacob H. Westfall, when it had no jurisdiction thereof.
    3. That the district court erred in sustaining the petition in error of Hannah and Jacob H. Westfall, when the petition and the transcript of record therein mentioned were not sufficient in law to maintain the proceeding in error.
    4. That the district court erred in overruling the demurrers filed by these plaintiffs in error to the amended petition of Hannah and Jacob II. Westfall in the original action in the court of common pleas.
    5. That the district court erred in its opinion and judgment that the facts set forth in the amended petition of Hannah and Jacob H. Westfall were sufficient in law to maintain their aforesaid action against these plaintiffs and others in the court of common pleas.
    6. That the district court erred in reversing the judgment of the court of common pleas in the action.
    7. That the district court erred in rendering its judgment in favor of Hannah and Jacob H. Westfall, when it should have been given for these plaintiff's in error and their co-defendants in the case, according to the law of the land.
    
      JE. T. Stewart, for plaintiffs in error.
    
      Bissell § Gorrill, for defendants in error.
   Ashburn, J.

It is claimed that the district court erred in refusing to dismiss the petition in error, on the ground that that court had not acquired jurisdiction in error,for the reason that plaintiff in error had failed to file, or caused to be filed with his petition in error, the original papers and pleadings under section 517 of the code as amended. 67 Ohio L. 114-15.

The purpose of the amended section was to enable an aggrieved party to more speedily reach a reviewing court and lessen the amount of costs in proceedings in error. To this end it should be liberally construed. In this view, under that section, the complaining party may have his option whether he will prosecute his petition in error on an authenticated transcript of the docket, or journal entries, and final judgment rendered, together with the original papers and pleadings in the case, or upon an authenticated transcript of a complete record in the case. In either case, the object of the code is to have the record, or the material out of which the record is to be made, brought into the court of review.

The district court ruled correctly on the motion to dismiss. There was found in that court, on the hearing, an authenticated transcript of a complete record, which necessarily included the journal entries and final judgment, tot gether with true copies of the original papers in the case. It appears that the original papers and pleadings were transferred from the office of the clerk of the common pleas court to "the files in the office of the clerk of the district court, on his own motiou, and were left in that court without additional file marks to evidence the filing of them. This objection is technical and unsound. The original papers were transferred to the district court files by the officer who had authority to do so. In the district court the identity and filing of the papers were proven by the affidavit of the clerk. Eile marks .are but evidence of the filing. If they had been “ either strung upon a thread, laid in a drawer or in a pigeon-hole,” in the district 'court clerk’s office, we conceive that they would be filed there within the terms of the law. Haines v. Lindsey, 4 Ohio, 90.

The demurrer avers a defect of parties, plaintiff and defendant.

The statute, in this class of cases (S. & O. 551), requires that “ all persons in being, who may be interested in the estate, or who may by the terms of the will, deed, or other instrument creating the entailment, thereafter become interested therein as heir, reversioner, or otherwise, shall be made parties to the petition.”

The petition in this case alleges that Harvey "Westfall departed this life, testate, leaving said plaintiff, his widow, and said Jacob II. Westfall, the husband of Emma West-fall, Sarah II. Starr, the wife of Stephen H. Starr, Mary E. Nimmons, the wife of Philip B. Nimmons, Elorence Whitehead, the wife of Charles Whitehead, and Sidney C. Gibbs, the wife of David W. Gibbs, the sole heirs at law.”

All the beneficiaries named in the will, and more, are included in this enumeration of parties, together with the executors elsewhere named in the petition. The averment that the group of persons named in the petition as being the “ sole heirs at law ” of the testator, substantially ex-eludes the existence of others. The phrase is equivalent to alleging they are the only heirs, or all the heirs: We discover no such defect of parties, or defective averment in relation thereto, as will avail the demurrants on demurrer.

It is urged that the petition is defective, because it fails to aver and show that the plaintiff, Hannah, elected to take under the provisions of the will. For this reason, she can only be considered as having a dower estate in this land, and the statutes authorizing the sale or lease of entailments by express provision exclude “ estates in dower” from their operation.

When these proceedings were commenced, the plaintiffs were in possession, claiming under the will. From the probate of the will the time had long passed in which the widow could make her election, prior to the filing of this petition. In view of this fact, if an election was necessary to secure to her the provisions of the will, an election will be presumed from the acquiescence of the parties interested. Stockton v. Wooley, 20 Ohio St. 184.

For a more forcible reason I think this objection to the petition can not prevail. The plaintiffs take their estate under the will free from all consideration as to dower. It is a direct divise to Hannah Westfall and Jacob H. West-fall, jointly, determinable on the death or marriage of Hannah. The estate inures to them under the will for their use, and the right to receive, possess, and enjoy under this provision of the will is not contingent on Hannah’s election. They have their estate by virtue of the expressed intention of the testator.

Defendants claim the legal title to all the real estate named in the will, except that named in item 4, is vested, by the will, in the executors, to enable them to discharge the trusts created and confided therein to them.

A correct solution of this claim, to that extent, involves a construction of the will. The real estate named in item 2 of the will is that in which plaintiffs claim a life estate, unincumbered by any trust in the executors, with remainder in fee to the heirs at law of the testator. The executor’s claim of title in trust appears, to us, a clear misconception of the terms of the will and the intention of the testator.

The power and title vested by the will in the executors must be found and determined by ascertaining the intention of the testator, as shown by and from a consideration of the whole instrument and all its parts.

The general power and duty of the executors are conferred by item 7. We are concerned, however, with only the last clause, in which they are authorized, “if it shall become necessary, in order to pay my just debts, to sell by private sale or in such manner, upon such terms of credit or otherwise, as they may think proper, all or any part of my real estate, and deeds to purchasers, to execute, acknowledge, and deliver in fee simple.” This is a general power for the performance of a specific duty, the execution of which might or might not be required to be executed. “ A mere direction in a will to executors to sell land is a naked power, and gives them no estate or interest in the land whatever, and, until the power is executed, the title to the laud descends to his heirs at law.” 3 Zabr. (N. J.) 447; 2 Ed. Ch. 156; Co. Litt. 42a; 9 Johns. 104; 1 Shep. Touch. 448 ; 19 Law Library, *233 ; Bissett on Estates for Life, 9. The demurrer admits the debts against the estate have all been paid, and that the executors have in their possession and control property and choses in action to an amount greater than will be required to satisfy all demands against the estate. Since no necessity can arise to call for an exercise of this naked power, under this general provision, the executors are vested with no title to this land.

In searching the will, it is found that, when the testator had in his mind the purpose to vest title in his executors, such intention appears in unmistakable terms — as in item 5. Here he devises to his children, naming them, lands in the State of Michigan, “ or their heirs forever, in equal proportions of the proceeds or avails.” Describes the land, and then declares: “ It is my desire that my executors herein appointed by me shall apportion and distribute all the property herein mentioned, to each and every heir herein named, according to the tenor of this my will, and the strict rules of justice and equity.” By this item, the legal title to the Michigan land is vested in the executors. The trust, however, is limited to the lands named in this clause of the will. It can not be extended to another, without a clear disregard of the intention of the testator. The word “ herein,” used in this cause, whether applied to the beneficiaries, the power, or the will, should not be extended, by construction, to any clause than the one where it is found.

As to the real estate embraced in item 2, the language of the testator is wholly different. It is: “I give and bequeath to my said wife and my son, Jacob H. Westfall, the use of my farm (describing it), during the time that she, my wife, remains my widow; but, at the death of my said wife, or if she should intermarry with any other person after my decease, it is my will that the said aforementioned and described farm shall be sold, and the proceeds of the same be equally divided between my children, or their heirs forever, or that they, my said children, divide said farm to suit themselves, as they may think best.” No trust is here created. The executors are not alluded to. The estates created are a life estate in plaintiffs and an estate in remainder in fee in the heirs at law of the testator. On the termination of the life estates, the heirs at law are vested with an option to sell the land and divide the proceeds among the beneficiaries, or to divide the land equally among them, as they, the children, shall think best. To carry into effect the devise, the persons authorized to sell or divide the land should be, and are, vested with the legal title. It is urged that the statutes authorizing the lease and sale of estates tail for life, etc., are in conflict with the wills act, because destructive of the intention of the testator. We think not, for the reason that the testator must be regarded as making his will in reference to all existing laws affecting rights in property.

The estate created by the will is a life estate, determinable on the death or marriage of Hannah Westfall, remainder in the heirs at law of testator. ' The fact that the life estate may terminate on the marriage of the first doneerenders it none the less a life estate. Coke says: “ If a man grant an estate to a woman, dum sola fuit, or durante viduitate, or quam diu se bene gisserit, or to a man and a woman during the coverture, or as long as the grantee dwell in such a house, etc., or for any like uncertain time, which time, as Braeton saith, is tempas indelerminatum — in all1 these cases, if it be of lands or tenements, the lessee hath,, in judgment of law, an estate for life, determinable, if livery be made,” etc. Co. Litt. 42a; Bissett on Estates for Life, 7.

Having ascertained the nature of the estates created by the'will, and that they are clogged by no trust, we are to ascertain whether plaintiffs are entitled in law to the relief provided in the act of April 4, 1859, for the sale of estates in tail, and the acts of March 3, 1864, and April 13, 1865, supplementary thereto. The court of common pleas has jurisdiction conferred on it to order the sale of all estates tail for life in remainder, and all determinable estates,, whether such estate may be created by will, deed, or other-instrument of writing, or may be derived by the law of descent and distribution, under the statutes of this state, except estates in dower or by courtesy. This jurisdiction may be invoked by the first donee in tail for life, or doneeof a fee simple estate, determinable on the happening of any future event, etc., and may be exercised when the sale-would be for the benefit of the applicant, and do no substantial injury to the heirs in tail, or others in succession, reversion, or remainder or expectancy.

It has been determined that the acts herein cited, to the-extent that they affect estates created before their passage, are in conflict with section 19 of article 1 and section 28 of article 2 of the constitution, and, for that reason, are inop ■ erative upon estates which were created and became vested before their passage. Gilpin v. Williams, 25 Ohio St. 283. No such infirmity exists in these acts, in relation to the estates under consideration. They were created and vested subsequent to the passage of these acts.

While the general assembly may not constitutionally legislate so as to disturb acquired rights and vested estates, it has power to legislate upon the subjects embraced in the acts of 1859, 1864, and 1865. Without entering upon a discussion of the policy of such legislation, the estates embraced in these statutes are within the scope of legislative power, and if the act providing for and regulating the sale of such estates is in force at the time the estate is created, it will be considered as created subject to the provisions of the statute. In such case, there is no invasion of the rights of private property, and such statutes are not in conflict with section 19 of article 1 of the constitution, or the 28th section of article 2.

The legal right to have the relief provided in these acts is not dependent upon the consent of the owners of the estate in remainder, etc.

The legal right of a party to apply to a proper tribunal, for the relief provided by the statute, is an incident attaching to the estate. Granting the relief involves two questions of fact — one, the benefit of the applicant, the other, injury to the owner iu remainder, etc. The person creating the estates is pi’esumed to have intended a benefit to accrue to the first donee, so that when it is made to appear, from some cause, that the estate vested in such donee is not beneficial to him, and can be made so in another form of investment, without injury to the owner in remainder, reversion, etc., these statutes step in to the aid of the first donee, when they can do so without injury to the owner in remainder, reversion, etc.

The conclusion is that the court of common pleas erred in sustaining the demurrers, and the district court did not err iu taking jurisdiction in error, and reversing the judgment of the court of common pleas.

Day, J., did not sit in this case.  