
    WILLS — PARTITION.
    [Lucas (6th) Circuit Court,
    October 3, 1903.]
    Haynes, Parker and Hull, JJ.
    FREDERICK A. J. Weiland, an Infant, by his Guardian, v. Anna S. Muntz et al.
    1. Wills — Remainder to Children Generally not a “Provision” under Sec. 5961 Rev. Stat.
    A devise of real estate by a testator to his widow for life, with remainder to his children generally without naming them, is not a “provision” for an after-born child within the meaning of Sec. 5901 Rev. Stat., notwithstanding the interest in remainder may subsequently inure to the benefit of such child.
    2. After-born Child a Tenant in Common under Sec. 5961 Rev. Stat. — Not a Creditor — Partition—Intestate Property. >
    Where á testator disposes of his estate by specific devises to children living at the date of his will, without making provision therein for an after-born child, and subsequently thereto acquires other property of which he dies intestate, such after-born child is not a creditor of the estate or devisor under Sec. 5961 Rev. Stat., but is a tenant in common in each parcel specifically devised and in the undevised property, and is entitled as such to the partition of his respective interests in both. Hence, in an action for partition against a devisee, .or his grantee, such after-born child cannot be relegated, in the enforcement of his rights, to the undevised property or an interest in remainder in another tract, nor be compelled to work out and accept the value of his interest in money, in an action for contribution against the devisees or their grantees.
    3. Substitution of new Plaintiff for Disqualified Guardian; not Error.
    Where an executrix, who is disqualified from acting as guardian of the estate of a minor heir, has commenced an action in partition as guardian against a devisee under the will, it is not improper'for the court, on motion of the guardian and against, the objection of defendant, to substitute as plaintiff another person subsequently appointed guardian in her stead.
    Appeal from common pleas.
    Beard & Beard, for plaintiff.
    Smith, for defendant.
   PARKER, J.

This is an action for the partition of real estate. It comes into, this court by way of appeal. It is submitted to us upon the pleadings and an agreed statement of facts. There have been various parcels of land partitioned with respect to which no question has been made. It is now sought to partition a certain city lot and a part of another lot, of which the defendant, Gooderman, claims to be the owner in entirety. It is claimed by this defendant that the plaintiff has no title to or interest in this real estate; that plaintiff is not a tenant in common with defendant, and that plaintiff, therefore, has no right to have a partition.

It appears that John Weiland was the owner of this and other real estate, in his lifetime; that he died in the year 1889, in Wood county, Ohio, testate as to part of his estate and intestate as to part; that his will was executed in 1880; that a certain tract of land with respect to which he died intestate (a tract of about thirty-nine acres) was situated in Wood county, Ohio, and was acquired by him after he had made his will. It also appears that the plaintiff, who is one of his children (there being in all fourteen children) was born in the year 188G, some six years after this will was executed and some three years before the death of decedent.

It is contended on behalf of the plaintiff that no provision was made for this child in the will, and that therefore, by force of Sec. 5961 Rev. Stat., the will was revoked, pro tanto, or was invalid as to this child, and that this child comes in for a full portion of the estate, and that it takes by inheritance precisely as if no will had ever been made devising any of these lands, and that therefore it takes its share as a vested estate in each parcel of land of which the decedent died seized.

On the other hand, it is contended that this is not so; that, in the first place, there is provision made for this child, so that it takes nothing by force of Sec. 5961 Rev Stat.; also that, if provision were not made so that it takes an interest under that section,, what devolves upon it is a right to recover an aliquot part of the estate of the decedent, not in kind, not in specie, whether in land or in chattels, but as if it were in the nature of a debt of the estate to such heir, or a claim in her favor as a creditor enforceable against the estate and against the heirs as well.

By his will, the decedent devised one tract of land in Wood county, Ohio, to eight of his children, naming them, and devised this lot and part of a lot in controversy to five other of his children, naming them. This still left undisposed of a fifty-acre tract of land in Wood county, constituting the homestead, with respect to which his will contains a provision that his- wife (who afterwards became his widow) should have an estate for life therein, and that the remainder should go to his children generally without naming them. It is needless to repeat that the name of the after-born child did not appear in the will. The undevised thirty-nine acre tract was acquired by the testator after the execution of his will.

It is contended on behalf of defendant, Gooderman, that the plaintiff should be relegated in the enforcement of his rights to the undevised land in Wood county and to this fifty-acre tract of land; that he should not be permitted to recover anything out of either of the tracts specifically devised to the children named.

There was a preliminary question in the case which I have passed by, and which I will notice here. Suzanna Weiland is named in the will as executrix, and she has qualified as executrix. By the will she is made guardian of all the minor children, and by virtue and in pursuance of that provision of the will, she was appointed guardian of this plaintiff as well as of the other minor children of the decedent. Her right to prosecute this action as .such guardian was questioned by a demurrer filed in this case. It seems to have appeared to the court below that she was disqualified from acting as such guardian, and it seems to us very clear that, under the circumstances, she was, disqualified. It also appears by the decision in the case of Scobey v. Gano, 35 Ohio St. 550, which was a proceeding to appoint as guardian a person duly qualified, that the former action of the court in appointing a disqualified person might have been attacked collaterally — that is to say, it might be ignored —and it is urged here that the action of the court of probate in appointing this guardian may be and should be ignored, and that therefore the case is not properly in court. The court below, however, on motion of the plaintiff, permitted another person to be appointed subsequently as the guardian of the estate, and to be substituted for the person disqualified to act as such guardian. This was done over the objection of this defendant; but subsequently the .defendant answered, and the case went to trial, and was decided in the court below upon the merits, and from the judgment of that court an appeal is taken here.

Aside from the question as to whether or not the defendant waived-this objection by answering instead of allowing judgment to be entered and prosecuting error, we are of the opinion that the action of the court in allowing this substitution was strictly legal and regular; that the substituted guardian is duly in court; that the defendant is duly in court, and that the judgment of the court herein will be binding upon the parties, so that they need have no apprehension of such judgment as may be entered herein being ignored or treated as a nullity because of the action having been begun by Suzanna Weiland as guardian. Upon that point we hold against the defendant.

Coming back now to the consideration of the main question, as to whether plaintiff acquired any estate or interest so as to become a tenant in common in this property, I should state a few additional facts.

Part of the owners of the undevised thirty-nine acre tract in Wood county, soon after the will was probated, in 1890, conveyed their interests to a man by the name of Radcliff. ' Afterwards, Radcliff instituted an action, in partition, in Wood county, making this plaintiff a party defendant. Plaintiff, by a guardian ad litem, appeared and answered and claimed an undivided one-fourteenth. The land was partitioned and a one-fourteenth interest was set off to and received by the guardian of the plaintiff. Soon after the probating of this will the ■ owners of the lot and part of a lot here in controversy, conveyed the.same, by warranty deed, to one Brown. Brown subsequently conveyed the property by warranty deed to the defendant, Gooderman.

Among the claims of Gooderman is this, that this minor (this plaintiff) should have had his interest in the whole estate worked out for him upon the partitioning of the tract of land specifically devised to the eight heirs, or upon the partitioning of the thirty-nine acres of land not devised; or that it should be worked out of the fifty-acre homestead tract in which the widow has a life estate. The tract specifically devised to the eight heirs is not partitioned in this proceeding. The claim is that primarily it ought to have been worked out of the thirty-nine acres, and that it not having been worked out there, plaintiff is precluded from having it worked out of this land specifically devised; also that the plaintiff should seek satisfaction of his claim out of the fifty acres yet undis-posed of. It will be remembered, however, with respect to the fifly acres, that a life estate having been given therein to the wife, that during the existence of that life estate it cannot be partitioned as against her wish, or without her consent, and partition cannot now be had, so that if the plaintiff should undertake to work his interest out of that land, his right to do so probably would be postponed, until after the death of the widow. It might be affected by some form of decree, but it could not be occupied or enjoyed or the plaintiff could not have an interest in possession until after the death of the widow.

The language of the statute upon this subject does not seem to us to be entirely clear, or free from doubt as to the question made. It seems to us to afford very strong ground for the contention made by the defense. A preceding section (Sec. 5959 Rev. Stat.), making provision for a posthumous child (one born after the death of the testator), provides that the birth of such a child shall have the effect of revoking the will, if it were the only child. Section 5961 Rev. Stat. says nothing about the will being revoked or rendered a nullity, either pro. tanto or otherwise, and it provides for the cases of posthumous children where there are other children, and pretermitted children who are not posthumous, that is to say, such as are born after the making of a will and before the death of the ancestor, and the plaintiff comes within that class. It is not a posthumous child, but stands upon the same ground here, there being other- children. And this section of the statute reads:

“When a testator, at the time of executing his will, dhall have a child absent and reported to be dead, or having a child at the time of executing the will, shall afterward have a child who is not provided for in the will, the absent child, or the child born after the execution of the will, shall take the same share of the estate, both real and personal, .that he would have been entitled to if the testator had died intestate* * *.

In this case, the share would be one-fourteenth, and therefore he must take one-fourteenth of the estate; but whether in specie, or whether, as if there had been no will made, he would inherit an interest in each tract of land, the statute does not say. It provides further, following right along with the reading, that “toward raising which portion the dev-isees and legatees shall equally contribute in proportion to the value of what they shall respectively receive under the will, unless in consequence of a specific devise or bequest, or of some other provisions in the will, a different apportionment among the devisees and legatees shall be found necessary, in order to give effect to the intention of the testator, as to that part of the estate which shall pass by the will

That, I say, seems, upon the reading, to afford some ground for the contention of the defendant here that there is a portion to be raised by contribution of the devisees, respect being had to the will and the purpose of the testator, so that if a certain share should be exonerated from the burden, that circumstance should be respected in apportioning the obligation; that the portion should be made up by contribution, not necessarily in specie, as if it were a general claim, and that the after-born child will not inherit in the sense or in the degree that he would if the ancestor had died intestate. And there are other clauses of the statute bearing upon this point and adding force to this contention, in Secs. 5978 and 5979 Rev. Stat. And our attention is called to the fact that this statute is, substantially if not exactly, a transcript of the statute of Massachusetts upon the same subject, which has been in force in that state for a long time, and it is urged, that therefore, upon a principle applicable to a case of this kind, it should receive the construction that the statute in Massachusetts has received at the hands of the courts of that state, and in that connection, our attention is called to a case in Bowen v. Hoxie, 137 Mass. 527, where it is held, in effect, that the claim is in the nature of a debt of the estate. In that case there were not devises of real estate, but were bequests of personalty, and in working out the share of a posthumous child the court required that the property which constituted the residuum of the estate, that not specifically bequeathed, should be first exhausted before a specific bequest should be touched. I will not stop to read from the case. It appears to proceed upon a very fair course of reasoning.

Before proceeding further with this discussion, I should come back to a matter which I have passed; and that is, the question made as to whether or not provision was made for this child in the will? Now we have cited to us against the contention of the defendant, the case of Rhodes v. Weldy, 46 Ohio St. 234, 235 [20 N. E. Rep. 461], I read from the opinion, by Chief Justice Owen. The child not provided for in that case was named Elizabeth, and the judge says:

“If Elizabeth was provided for by the will of her father, it was not revoked by her birth after its execution, and the judgment below should be affirmed. If there was such provision made, it is to be found in these words: T will and devise to my wife, Harriet Young, all my real estate wherever situate, to use and occupy as to her may seem proper, during her natural life, and after her- death to the heirs of her body ■ begotten.’ ”

Substantially the same as the first provision of the will under consideration-; that is, item three of that will. He then continues, p. 236:

“It will not be contended that this is a specific provision for the plaintiff. If it is a provision at all, it is so because the language is comprehensive enough to include her. It was evidently written with a view only to the maternity of the ‘heirs of her body begotten,’ and without reference to their paternity. It was intended as a comprehensive direction of the course which the property should take after the immediate object of the testator’s bounty should die, unless she should die without issue, in which case, other direction is made in the will. Much learning and research have been expended in discussing the character of the devise in remainder, and whether it is a vested or contingent interest.
“In the view we take of the case, this is wholly immaterial. The question is, has Elizabeth ‘been provided for in the will’ in the sense of the statute. It is not ■ conclusive of this question to say that a ‘disposition’ has been made which may inure to her benefit; ‘Disposition’ and ‘provision’ are not necessarily convertible terms.”

He then proceeds to hold that, notwithstanding the fact that this general provision in favor of the children or heirs of the body of his wife would inure to the benefit of this after-born child, the same as for the benefit of the others, that could not, under the statute, be deemed a provision for that child. That was a decision under Sec. 5959 Rev. Stat, and not under Sec. 5961 Rev. Stat.; but according to our view, the statutes in this respect are alike, and therefore, the authority is in point.

A later case, German Mut. Ins. Co. v. Lushey, 66 Ohio St. 233 [64 N. E. Rep. 120], is under Sec. 5961 Rev. Stat., and is in point as indicating what the court regard as a “provision” for an unborn child. There the will specifically provided: “Should any child or children, we now having only one, George Gabriel, be born to me hereafter, it shall in no wise alter or revoke this will and testament.” Now the wife of the testator in that case was at the time enciente with this after-born child, and he seems to have had in mind the probability of its being born alive and attempted to cut it off and made a provision in respect to it; but the Supreme Court says that is not a provision fop it, but against it, and gave full force and effect to Sec. 5961 Rev. Stat., and so gave to it an undivided one-half of the estate.

Now I will say something more upon this question as'to the right or interest that the plaintiff inherited- — whether the right of contribution is to be worked out in a court of equity as if it were a claim, secured, perhaps, by an equitable lien, or whether it was an estate cast upon him by inheritance the same as if there had been no will.

I have already indicated the line of argument of the defendant and the chief authority relied upon, to wit, Bowen v. Hoxie, supra; and will say that we were very strongly inclined at first to follow that decision and that course of reasoning with respect to our statute; but, upon further consideration, we have concluded tlpat the question is set at rest, in the state of Ohio, by this decision to which I have just adverted, German Mut. Ins. Co. v. Lushey, supra, and that the decision there requires us to resolve this 'question against the contention of defendant. To be sure, in that case this precise point does not appear to have been debated or in any way called to the attention of the court, and perhaps was not considered by it. There was a single tract of land; the land was devised by the husband; the child living at the time the will was executed was cut off by the will, and the court decided that the child after-wards born was not cut off. The question arose between the after-born child and the mortgagee of the husband. The husband had undertaken to mortgage the entirety. _ The after-born child, in the action between it and the mortgagee, claimed an undivided one-half. The court held that the child was entitled to an undivided one-half. It does not hold, however, that it had a right to compel contribution or had a right to compel the mortgagee of the entirety to make up to it the value of this undivided one-half, he retaining the title to the land, but it holds that by force of this statute the title to an undivided one-half of this land was cast upon this child. After discussing the case, the opinion closes with this sentence, p. 241:

“It follows, therefore, that George Lushey, the husband of the testatrix, when he gave the mortgage to plaintiff in error, owned but one-half of the premises described in the mortgage, and that the judgment of the court of common pleas was right, and that the circuit court did not err in affirming the judgment.”

If the court had taken the view contended for by the defendants here, it would have been obliged to say that he owned the whole premises, subject to this charge, and would have been obliged to adjudge that the child could not recover in the form of action then pending before the court, but must enforce payment of an amount equal to the value of the estate. The action was by the grantee in a mortgage to foreclose the mortgage upon the entirety; it was in an action where the child appeared and answered with respect to that state of facts that the court says that the plaintiff in error owned one-half of the premises described in the mortgage. The syllabus reads as follows:

“Where a testatrix, having-a child living, devises all her estate to a third person (in this case her husband), without making provision in her will for an after-born child, such after-born child, if it survive the testatrix, by virtue of the provisions of Sec. 5961 Rev. Stat., will inherit from the mother as her heir at law, as if she had died intestate, notwithstanding, that by clear and explicit language in the will, such testatrix undertakes to disinherit such after-born child.”

Now in entering judgment here, as we shall, in favor of the plaintiff and against the defendant, adjudging that the plaintiff is the owner of an undivided one-fourteenth interest in this land and is entitled to partition, we believe that we are following the law as laid down by our Supreme Court. There, is much authority upon this question and in support of this conclusion, or, I may say, in harmony with this decision of the Supreme Court. We cite 2 Woerner, American Law Administration 1240, being the latter part-of Sec. 565, and cases there cited, which we have examined, and one especially, which I shall not take time to read from, but which seem to be very much in point — the case of Ward v. Ward, 120 Ill. 111 [11 N. E. Rep. 336].

There is a question presented in this case, as to improvements, rents and profits, but we understand that the rights of the parties as to these, will be worked out without the intervention of the court. The case will be retained in this court and an order of partition will be issued out of this court.  