
    Thomas v. The Trustees of Ohio State University.
    
      Devise to educational institution — In case devise fails — Testator empowers only lineal descendant to ratify devise — Descendant deeds to devisee — Section 5915, Revised Statutes■ — ■ Construction of wills.
    
    1. A testator having devised to an educational institution, and in case such devise should fail or be held void for any cause, then to the children of his two brothers, anil having in a codicil authorized, empowered and requested his daughter, who was his only lineal descendant, to ratify and confirm the devise to the institution, declaring that, “in case she complies” with this request the devises and bequests over to the children of the testator’s brothers “are revoked,” and the testator having died within a year from the making of the will, so that the devise to the institution became invalid by virtue of section 5915, Revised Statutes, and the daughter having executed the power by a deed to the institution, the children of the testator’s brothers take nothing under the will. Board of Trustees of the Ohio State University v. Folsom et at., 56 Ohio St., 701, approved and followed.
    2. The power and authority by the testator conferred upon his daughter and heir at law, is not a devise in trust to or for such institution, but is a naked power to appoint to a design nated object, and is not rendered invalid by section 5915, Revised Statutes.
    3. A deed of confirmation expressly purporting to execute such power and conveying the property which had been devised,is operative to invest the grantees with a full and perfect title to the property therein described.
    (No. 8302
    Decided April 12, 1904.)
    Error to tlie Circuit Court of Pickaway county.
    This is another phase of the same controversy which appears in the case of the Board of Trustees of the Ohio State University v. Folsom et al., 56 Ohio St., 701. This action was begun by John Gr. Haas and Daniel Haas, as trustees under the last will and testament of Henry P. Page, deceased, against Charlotte G. Page, the widow of the testator, the Board of Trustees of the Ohio State University, the plaintiff in error, Maria P. Thomas, Charles J. Folsom, Ellen Gill, Henry P. Folsom, Clarence H. Folsom et al., the object and purpose of said action being to obtain an interpleader between the said defendants in respect to their claims under the will and codicils thereto of Henry F. Page, and a certain deed made by Isabel Page, his daughter, as hereinafter stated, and to determine the rights of the said • defendants thereunder. The last will and testament of Henry F. Page, late of Pickaway county, contained, among other things, the following:
    “V. I give and devise to the Ohio State University to be invested as the endowment fund, in fee simple .and absolutely, all the residue, rest and remainder of my real estate and personal property in Ohio, Illinois or elsewhere. This devise shall include lands or personal property acquired hereafter, or .acquired under Item 7.
    “VI. If the devise and bequests contained in the last clause shall fail or be held void for any cause, then I give and devise the real and personal estate described in said clause number five (5) to the •children and legal representatives of my brother, Charles Folsom, and of George Folsom, deceased, in fee simple and absolutely.
    “VII. By the words rest and residue and remainder, in clause five, is meant all my real and personal property, subject to the life estate and interest given to my wife and daughter.”
    Also a codicil containing the following:
    “II. The object and intention of the devise in my will to the children of George Folsom, deceased, and to the children of Charles Folsom, was that in case of my death, within a year from the date of my will and the consequent failure of the bequest and devise to the Ohio State University, the said children should take the property, but not that they should have the same in any other event.
    “I now provide and declare that my said daughter is fully authorized and empowered to ratify and confirm said devise and bequest to the said university in case of my death within a year from the date of said will, and she is desired and requested by me to do so.
    “In case she complies with this request the devises and bequests to the said children of George Folsom and Charles Folsom are hereby revoked. ’ ’
    • The said daughter of Henry F. Page, Isabel Page, executed the power conferred in the said will and. .codicil by a deed of confirmation, in which the material parts are as follows:
    “Now, therefore, I, the said Isabel Page, the-daughter and only issue of the said Henry F. Page, the said testator, in execution of the authority and. power conferred upon and vested in me by said testator in and by the first of said codicils, to ratify and confirm the said devise and bequest to the Ohio-State University contained in said will and the said first codicil, and in consideration of the premises and of the sum of one dollar to me paid by the Board of Trustees of the Ohio State University, the receipt whereof is hereby acknowledged, do hereby ratify and confirm said devise and bequest to the said Ohio State University, and do hereby convey unto the Board of Trustees of the Ohio State University, and the successors and assigns of said board forever, in trust for the use and benefit of said university, to be invested as the endowment fund, all the property,, real and personal, devised and bequeathed by said. testator to the said Ohio' State University in and by his said will and codicils, the same being all the residue, rest and remainder of the real estate and personal property in Ohio or elsewhere of which said testator died seized, ’ ’ etc.
    After executing the said deed Isabel Páge, who was the daughter and only lineal descendant of Henry F. Page, died, leaving her mother, Charlotte G-. Page, claiming to be her only heir at law. The plaintiff in error claims an interest in the lands devised to the Board of Trustees of the Ohio State University by virtue of the said will of Henry F. Page, and also claims by inheritance from him through the said Isabel Page. Charlotte Gr. Page afterward, on or about January 17, 1898, by deed of that date, released and quitclaimed to the board of trustees of the Ohio State University all of the real estate of the testator, Henry F. Page, in Ohio and Illinois, subject to her life estate therein.
    This suit was heard in the court of common pleas of Pickaway county and was dismissed for the reason that the court was of opinion that it had no jurisdiction to try the issues therein presented; an appeal was taken to the circuit court by the board of trustees of the Ohio State University, and, upon the hearing in the circuit court, the findings and adjudication of that court were in favor of the Board of Trustees of the Ohio State University; a motion for new trial was made by Maria F. Thomas, which was overruled, and she files her petition in error in this court to reverse the judgment of the circuit court.
    
      Mr. H. J. Booth and Messrs. Abernethy S Folsom, for plaintiff in error.
    Charles Folsom and the children of Greorge Folsom were the heirs at law of Henry F. Page, upon the death of Isabel Page, intestate. The Board of Trustees, etc. v. Folsom et al., 56 Ohio St., 701; Patton v. Patton, 39 Ohio St., 590; Davis v. Davis, 62 Ohio St., 411; The New York Act of 1860 (N. Y. Laws of 1860, 607); McKeown v. Officer, 6 N. Y. Supp., 201; 3 Greenleaf’s Cruise on Real Property, star page 14; secs. 4158 and 5915, Rev. Stat.
    The university had not the legal capacity to take from the testator, because he died within a year after making his will; and the devise to it failed for that reason also. Stephenson v. Short, 92 N. Y., 433; sec. 2, chap. 41, Laws of N. Y., 1862; High School v. Harrison, 12 W. N. C., 32; Lefevre v. Lefevre, 59 N. Y., 434; Starkweather v. Bible Society, 72 Ill., 50; People’s Trust Co. v. Smith, 82 Hun, 494; Fairchild v. Edson, 77 Hun, 298; Russell v. Topping, 5 McL., 194; secs. 20 and 4105-15, Rev. Stat.
    The testator could not confer upon his daughter any power or authority to do for him that which he could not do directly; therefore, his attempt to authorize and empower her to ratify and confirm his void devise to the university was itself absolutely void. 2 Bouvier’s Law Dictionary, 445; 18 Am. & Eng. Ency. Law, 878, 893; 1 Jarman on Wills (5 ed. Bigelow), 385, 388; Williams’ Real Property, 130; Willard on Real Estate and Conveyancing, 268; Eells v. Lynch, 8 Bosw., 482; Doolittle v. Lewis et al., 7 Johns. Ch., 45; Burleigh v. Clough, 52 N. H., 271; Matter of Stewart, 131 N. Y., 274; Martindale on Conveyancing, sec. 148; Fargo v. Squires, 39 N. Y. Supp., 648; Tilden v. Green et al., 130 N. Y., 29; 1 Devlin on Deeds, sec. 17; People v. Law, 34 Barb., 511; 3 Com. Dig., 139; Branham v. Mayor, 24 Cal., 585; Co. Litt., 295, 296; 1 Rep., 146; Dyer, 109; 5 Rep., 15; 1 Tomlin’s Law Dictionary, “Confirmation;” Bolton v. Bank, 50 Ohio St., 290; Crane v. Doty, 1 Ohio St., 282; Linton v. Laycock, 33 Ohio St., 134; Hawkins on Wills, 237.
    The intention of Isabel Page, as shown by the instrument she executed, was to ratify and confirm his devise to the university in compliance with his desire and request, and not to convey any interest of her oVn in the land. Uhl v. Ohio River Railroad Co., 41 S. E. Rep., 340 (W. Va. S. C. App.); Mintier v. Mintier, 28 Ohio St., 307; Dawson v. Lawrence, 13 Ohio, 544; Davis v. Hollingsworth, 113 Ga., 210; 84 Am. St., 233, 235; 2 Blackstone’s Com., 298; Huie v. McDaniel, 105 Ga., 319; 31 S. E. Rep., 189; Goldsmith v. Goldsmith, 33 S. E. Rep., 266 (W. Va. S. C. App.); Estate of Fair, 132 Cal., 523; 84 Am. St. Rep., 70; Bradish v. Gibbs, 3 Johns. Ch., 550; Fitzgerald v. Fauconberge, Fitz., 207; Bennett v. Aburrow, 8 Ves. Jr., 614; Cooper v. Martin, 12 Jur. N. S., 887; Bouvier’s Institutes, sec. 1946 et seq.; Berridge v. Glassey, 2 Cent., 804; Second Universalist Society v. Dugan, 3 Cent., 875; Henderson v. Mack, 82 Ky., 379; Beardsley v. Hotchkiss, 96 N. Y., 201; Pollock v. Hooley, 67 Hun, 371; 2 Devlin on Deeds, sec. 848; Elphinstone Inter. of Deeds, 94; Sanders on Uses and Trusts, 89, star page 90; 2 Story’s Equity Juris., sec. 1062a; Monk v. Mawdsley, 1 Sim., star page 289; Ridgely v. Cross, 34 Atl. Rep., 469; Wynne v. Griffith, 4 Law Jour. C. P., 27; S. C. 3 Bingham, 179; 1 Steph. Inst., 507; 4 Cruis. Dig., 282, 497; Bringloe v. Goodson, 4 Bing. N. C., 734; Turner v. Timberlake, 53 Mo., 371; Gulf Red Cedar Co. v. O’Neal, 30 So. Rep., 466; 1 Devlin on Deeds, sec. 423; 4 Kent’s Com., 335; McRae v. McDonald, 57 Ala., 423; Matthews v. McDade, 72 Ala., 387; Sir Edward McClere’s Case, 6 Coke, 17; Pomery v. Partington, 3 Term R., 665; Gindrat v. Gaslight Co., 82 Ala., 596; 60 Am. Rep., 769; Blagge v. Miles, 1 Story, 426; Bishop v. Remple, 11 Ohio St., 277.
    The instrument which Isabel Page executed is an essential part of the scheme of the testator to transmit his property to the university in violation of the.statute, and is therefore void. Board of Trustees v. Folsom, 56 Ohio St., 701; Endlich on Inter. of Stat., sec. 138; O’Hara v. Dudley, 95 N. Y., 403; Duke of Marlborough v. Earl Godolphin, 1 Eden, 417; Strickland v. Aldridge, 9 Ves. Jr., 516; Boston v. Stratham, 1 Eden, star page 508; Leonard v. Springer, 98 Ill. App., 530; 1 Powers Dev., 380, 389; Brattle Square Church v. Grant, 3 Gray, 142; Sears v. Russell, 8 Gray, 94; Hall v. Priest, 6 Gray, 22; Richardson v. Wheatland, 7 Metc., 169; Olney v. Hull, 21 Pick., 314; Fosdick v. Fosdick, 6 All., 47.
    
      Messrs. Harrison, Olds <& Henderson and Messrs.. Maxwell é Ramsey, for Board of Trustees of the-Ohio State University.
    The language used by the testator distinctly recognizes the unqualified right of his daughter to exercise the power conferred upon her, in favor of the-university, or to decline to do so, as she sees fit. It. is clear, therefore, that there was no trust, precatory or otherwise, in favor of the university. No secret, trust is alleged. 2 Sugden on Powers, star page in brackets 158 (3 Am., 7 London ed.); Farwell on Powers, 266; 2 Perry on Trusts, sec. 248; Sugden on Property, star page in brackets, 376; In re Hamilton, C. A. (1895), 2 Ch., 730; In re Adams, 27 Ch. Div., 410; Hill v. Hill, C. A. (1897), 1 Q. B., 483; Williams v. Williams, C. A. (1897), 2 Ch., 12; 2 Story’s Eq. Jur., sec. 1069; 2 Redfield on Wills (2 ed.), 423; Hess v. Singler, 114 Mass., 56; Aldrich v. Aldrich, 172 Mass., 101; Foose v. Whitmore, 82 N. Y., 405; Boyle v. Boyle, 152 Pa. St., 108; Bills v. Bills, 80 Ia., 269; Arnold v. Arnold, 41 S. C., 291; Bryan v. Milby, 6 Del. Ch., 208; Pratt v. Sheppard, etc., Hospital, 88 Md., 610.
    What the testator did, in substance and effect, was to confer upon his daughter power if she saw fit in the exercise of her own judgment and discretion, to appoint the estate in remainder to the university: Young Women’s Christian Home v. French, 187 U. S., 401; 47 L. Ed., 233; Adv. Sheets Law. Ed. U. S. S. C. Rep., Feb. 1, 1903, p. 184; 1 Sugden on Powersstar page in brackets, 358.
    The question, therefore, is whether the power to appoint an estate to educational purposes in the free exercise of the judgment and discretion, not of the testator, but of the donee of the power (who in this case was an entirely disinterested person and the only issue of the testator) is within the prohibition of section 5915. Board of Trustees, etc. v. Folsom, 56 Ohio St., 701; Helfenstine v. Garrard, 7 Ohio (pt. 1), 275; Stilley v. Folger, 14 Ohio, 650; Thompson v. Thompson, 17 Ohio St., 655; Tilden v. Green et al., 130 N. Y., 29; De Serre v. Clarke, 18 Law Rep. Eq., 587; Theobald v. Fugman, 64 Ohio St., 473; McGlade’s Appeal, 99 Pa. St., 339; Allen v. Stevens, 161 N. Y., 123; secs. 4182 and 5915, Rev. Stat.
    The only issue of the testator waived and relinquished the protection of the statute, and the result was the same as if the statute had never been enacted. New York act of 1860, Ch. 360; Amherst College v. Ritch, 151 N. Y., 282.
    If the estate in remainder passed to Isabel as intestate property, then it was conveyed by her deed to said board of trustees. The deed from Isabel Page to the Board of Trustees of the Ohio State University is not nor does it purport to be, merely a deed of ratification and confirmation or merely a deed made in execution of a power. Further than that, it is, and it purports to be, an original and primary conveyance from the grantor to the grantee. 9 Am. & Eng. Ency. Law (2 ed.), 137; 2 Smith’s Leading Cases, Pt. 1 (8 Am. ed.), 539; Br. Leg. Max., star page 415; 7 Am. & Eng. Ency. Law (2 ed.), 484; Lambert v. Smith, 9 Ore., 185; Cross v. Weare Commission Co., 153 Ill., 499; Agricultural Society v. Tubbessing, 87 Ia., 140; 9 Am. & Eng. Ency. Law (2 ed.), 18, 127, 141, note; White’s Lessee v. Sayre, 2 Ohio, 110; 3 Washburn on Real Propery (5 ed.), star pages 606, 607, 620, 621; 2 Devlin on Deeds, secs. 212, 840; 1 Devlin on Deeds, sec. 17; Tiedeman on Real Property, sec. 782; Boone on Real Property, secs. 300, 304; Hoffman v. Mackall, 5 Ohio St., 124; Foster’s Lessee v. Dennison, 9 Ohio, 121; Hall’s Lessee v. Ashby, 9 Ohio, 96; Coal Co. v. Mining Co., 40 Ohio St., 559; Martin v. Jones, 62 Ohio St., 525; Mittel v. Karl, 133 Ill., 65; Hennessy v. Gore, 35 Ill. App., 594; Peckham v. Haddock, 36 Ill., 44; 4 Grreenleaf’s Cruise, star pages 83, 244; Touchard v. Crow, 20 Cal., 150; Barr v. Schroeder, 32 Cal., 609; Fauntleroy’s Heirs v. Dunn, 3 B. Mon., 594.
    The deed of Isabel is not void for illegality. Thomas v. Cronise, 16 Ohio, 54; Williams v. Englebrecht, 37 Ohio St., 383; Barton v. Morris, 15 Ohio, 408; White v. Brocaw, 14 Ohio St., 339; Tremper v. Barton, 18 Ohio, 418; Van Zant v. Davies, 6 Ohio St., 52; Robinson v. Robinson, 17 Ohio St., 480; Randall 
      v. Howard, 2 Black, 585; Gibson v. Lyon, 115 U. S., 439.
    The conveyance by Isabel vested in the board all the rights and interests she had in the estate which her deed purported to convey. 1 Sugden on Powers, star page in brackets, 243; 4 Greenleaf’s Cruise, star page 114 (Title 32, Ch. 2, sec. 5); Crane v. Doty, 1 Ohio St., 282; Gilpin and wife v. Williams, 25 Ohio St., 283; Patton v. Patton, 39 Ohio St., 590; Lessee of Thompson v. Hoop, 6 Ohio St., 481.
    
      Messrs. Sater & Sater, for George Folsom.
    Judgment was rendered against persons who were not parties. The decree rendered against Charles J. Folsom and Ellen Gill was void and not binding, and constitutes reversible error. Southward v. Jamison, 66 Ohio St., 290; Endel v. Leibrock, 33 Ohio St., 254; Bukheimer v. Ashcraft, 5 Re., 526; 2 Bull., 266.
    The remedy is at law, not in equity. The prayer of the cross-petition of the Board of Trustees of the Ohio State University is that it be adjudged the owner in fee simple of the premises in question and that it be awarded possession of said premises. It is not in possession, but seeks to gain such. The question is one of title and possession. Sections 5779 and 5781, Rev. Stat.; Marsh v. Reed, 10 Ohio, 347; 17 Am. & Eng. Ency. Pl. & Pr., 277, 278; 7 Ency. of Pl. & Pr., 267; Stephens on Pleadings, 13.
    The Board of Trustees of the Ohio State University has no right, title or interest in the premises. The decree of the circuit court was, therefore, erroneous. Section 5915, Rev. Stat.; Stephenson v. Short, 92 N. Y., 433; Bouvier’s Law Dictionary, “Invalid;” 17 Am. & Eng. Ency. Law (2 ed.), 417; State v. Casteel, 110 Ind., 182.
    
      How, then, can the exercise of a void or null power, conferred on Isabel Page, convey a valid title of ány kind, character, or description to the university? Hood v. Perry, 75 Ga., 311.
    Collateral heirs may attack the invalidity of the bequest to the university. Patton v. Patton, 39 Ohio St., 590; Davis v. Davis, Executor, 62 Ohio St., 411; Trustees of State University v. Folsom, 56 Ohio St., 701; Theobald v. Fugman, 64 Ohio St., 473; Amherst College v. Ritch, 151 N. Y., 282; Harris v. Slaght, 46 Barb., 470; Harris v. American Bible Society, 2 Abb. Dec., 316; Harris v. American Bible Society, 4 Abb. Pr. N. S., 421; sec. 5915, Rev. Stat.
    The testator could not empower his daughter to confirm a bequest he could not lawfully make, or to do what the law prohibited him from doing. Burleigh v. Clough, 52 N. H., 267 (13 Am. Rep., 23, 26).
    The very nature of a power implies the relation of principal and agent. As Bouvier says in his definition of the term, it is “the right, ability or faculty of doing something. * * * Technically, an authority by which one person enables another to do some act for him.” 2 Lil. Abr., 339; Kent’s Com., star page 318; Anderson’s Law Dictionary, 792; 22 Am. & Eng. Ency. Law (2 ed.), 1095.
    "Whatever authority Isabel Page took was what she got from the power given her by the will to do an act which the testator himself could not do, and the purported deed executed and delivered by her was necessarily taken under and by virtue of the will. Doolittle v. Lewis, 7 Johns. Ch., 45; 11 Am. Dec., 389; Elphinstone on Deeds, star page 244; Crabb on Real Prop., sec. 1969; Bradish v. Gibbs, 3 Johns. Ch., 550; Boson v. Statham, 1 Eden, 508; 1 Devlin on Deeds, sec. 17.
    
      The purported confirmation passed no estate to the university. Langdeau v. Hanes, 21 Wall., 521.
    The following elements are necessary to and involved in a confirmation:
    1. The confirm or must at the time of the confirmation have an estate or right in the lands and tenements conveyed.
    2. The confirmee must prior to or at the time of the confirmation have possession of the lands and tenements conveyed, or some estate therein;
    3. The confirmation operates to make sure and certain a voidable estate of the confirmee; or to increase and enlarge a particular estate of such confirmee.
    Tested by the above definition, not a single one of the above elements is found in the purported confirmation of Isabel Page, because—
    1. She had no estate or right in the premises conveyed to the Board of Trustees of the Ohio State University at the time of the execution and delivery of her alleged confirmation, excepting a life estate, and that by express exception she did not convey.
    2. Such board did not at the time of such attempted confirmation, or at any prior time, have possession of such premises, or any estate therein.
    3. Such board had no voidable estate capable of being made sure and certain, but a void estate to which no vitality could be imparted. It had no particular estate susceptible of increase or enlargement. It had no estate or right whatever. Morrow v. Whitney, 95 U. S., 554; Slidell v. Grandjean, 111 U. S., 439; DeMares v. Gilpin, 15 Colo., 81; White & T. L. Cas., Pt. 2, star page 695; Am. & Eng. Ency. Law, 588; 1 Cooley’s Blackstone, Book 2, 234; Devlin on Deeds, sec. 17; Barton’s Dig. Leg. Max., 69; 2 Co. Litt., 68, 295b; Branham v. Mayor, 24 Cal., 585, 605; Denson v. Mitchell, 26 Ala., 360; 4 Kent’s Com., 520, 521; 2 Washburn’s Real Prop., star page 371; Greenleaf’s note, 6 Cruise, 208, Devise, Ch. 11, sec. 6; Plucky v. Digges, 2 Hud. & Br., 1, 40-48; Randall v. Duff, 79 Cal., 123; Dupont v. Wertheman, 10 Cal., 368; Batchelor v. Brereton, 112 U. S., 396; Wynne v. Griffith, 4 Law Jour. C. P. 27; S. C. Bingham, 179; Polk v. Wendell, 5 Wheat., 293; Hood v. Brown, 2 Ohio, 269; 5 Viner, 381; Warner v. Conn. Mut. Life Ins. Co., 109 U. S., 357; 16 Am. & Eng. Ency. Law, 936; Ritchie v. Putnam, 13 Wend., 524; Davenport v. Parsons, 10 Mich., 42; 81 Am. Dec., 772; Turner v. Timberlake, 53 Mo., 371; Carter v. Longworth, 4 Ohio, 384; Wendell v. Van Rensselaer, 1 Johns. Ch., 353; Burdett v. Wright, 2 B. & Ald., 710; 1 White & T. L. Cas., Pt. 1, star page 213; Harding v. Glyn, White’s & T. L. Cas., star page 1079; Bullard v. Shirley, 153 Mass., 559; Warren v. Rudall, 4 K. & J., 603; Milwaukee Protestant Home v. Beecher, 82 Wis., 409; Patton v. Patton, 39 Ohio St., 590; 2 Williams on Executors (1895 ed.), 311; 1 Jarman on Wills (Big. ed. 1893), 243.
    The university had not the capacity to take. The university on account of the death of the testator was without legal capacity to take from him as a devisee or legatee, and being unable to take from him, it could not take from his daughter by her pretended confirmation of his void devise and bequest. People’s Trust Co. v. Smith, 82 Hun, 494; Robinson v. Hardcastle, 2 T. R., 241; 7 L. R. A., note 143; Fairchild v. Edson, 77 Hun, 298.
    The general rule relied on by counsel for the Board of Trustees that an instrument should be given some effect, if possible, is necessarily and always limited and controlled by the further rule that the purpose of the instrument must be lawful.
    The courts will not give effect to an instrument bearing on its face the stamp of illegality, or aid in carrying out an unlawful act or purpose. Bank of the United States v. Owens, 2 Pet., 527.
    Isabel Page’s deed did not have either a double or an alternative purpose.
    The habendum clause in a deed is not an essential part of it. It simply denotes the extent of the estate granted. It is almost obsolete in modern conveyances and may be entirely rejected if repugnant to the other clauses qí the conveyance. 1 Devlin on Deeds, sec. 213; Mayor v. Bukley, 51 Mo., 227; 3 Washburn on Real Property (4 ed.), 398.
    If there be a specific limitation contained in the premises, followed by a more general limitation in the habendum, the latter limitation cannot enlarge the estate granted by the premises. Bricker v. Bricker, 11 Ohio St., 240; Tiedeman on Real Property, sec. 844; 5 Am. & Eng. Ency. Law (1 ed.), 457, note 2.
   Davis, J.

The counsel have elaborately argued several technical questions relating to the jurisdiction and procedure in the courts below. As to these matters it is sufficient to say that we are of the opinion that the circuit court had jurisdiction, not only of the subject matter but of all' necessary parties, and in sufficiently proper form, to determine all the issues in the case.

The circuit court found and adjudged that the title to the lands in controversy had been adjudicated in favor of the defendants in error, The Board of Trustees of the Ohio State University, by the circuit court of the United States and the circuit court of the state of Illinois, although the decree of the former court had been appealed from and a proceeding in error had been instituted to review the decree of the latter court; and for that reason the court declined to pass “upon the .question as to what was the operation and effect of the deed of confirmation by Isabel Page, made on the fifth day of December, 1891, as shown by the record.” "Whether the court below was right or wrong in this conclusion is immaterial now; for the view which we take of the real controversy between the parties disposes of the whole case.

In Board of Trustees of Ohio State University v. Folsom et al., 56 Ohio St., 701, construing the same will which we are now considering, it was held by this court that the children of the testator’s brothers fake nothing under the provisions of the will; because the devise over to them is not made to depend upon the validity of the ratification of the devise and conveyance to the trustees of the university, but is defeated by the fact that it was made. Their rights were made determinable upon a condition which has happened; and therefore, whatever may be the state of the title to the property as between the trustees of the university and the children of the testator’s brothers as heirs of the testator’s daughter, it is clear that they cannot take as devisees under the will. There has been suggested to us no sufficient reason for receding from that position. It follows that if the deed of confirmation which was made by Isabel Page after her father’s death, was ineffectual to invest the trustees of the university with the title, and Isabel Page died seized of the property in question as an estate of inheritance, then the children of the testator’s brothers are entitled as her heirs. It is, therefore, apparent that the material questions to be now determined are, First, Was the instrument which was executed by Isabel Page operative and effective to vest the estate in the Board of Trustees ■of the Ohio State University under the will? and, .Second, If the estate passed'to Isabel Page as intestate property of her father, then was it conveyed by the instrument which she executed, to the Board of Trustees of the Ohio State University? If either or both of these questions must be answered in the affirmative, the judgment of the circuit court must be upheld, regardless of the reasoning upon which it was founded.

The Revised Statutes of Ohio, section 5915, provide: “It any testator die, leaving issue of his "body, or an adopted child, living, or the legal representatives of either, and the will of such testator give, devise or bequeath the estate of such testator, or any part thereof, to any benevolent, religious, ■educational, or charitable purpose, * * * or to any person in trust for any of such purposes, * # * whether such trust appears on the face of the instrument * * * or not; such will as to such gift, •devise or bequest shall be invalid unless such will shall have been executed according to law, at least one year prior to the decease of such testator.” It is obvious that this statute does not make the act of giving, devising or bequeathing property an illegal act; for the same gift, devise or bequest which is declared to be invalid if the testator shall die within one year from the execution of his will, may become valid if the testator shall live one year or more after making the will. In other words, the devise or bequest may be valid or invalid according to the lapse of time. It is therefore apparent that this statute is intended to operate merely as a limitation upon the testator’s power of disposition, for the protection of the heir against improvident wills or wills made under undue influence. Being such a limitation the statute is to be strictly construed. Theobald et al. v. Fugman et al., per Spear, J., 64 Ohio St., 473, 481; McGlade’s Appeal, 99 Pa. St., 339, 343; and being such a limitation and no contrary principle of right or of public policy being involved, the person for whose benefit it is made may waive or relinquish it. This statute declares invalid only gifts, devises and bequests directly to, or in trust for the purposes named. The will which we are now considering devises directly to the Board of Trustees of the Ohio State University, and recognizing the possibility that it might be defeated by his death within a year, the testator devises over to the children of his brothers; and later by a codicil, without revoking this direct devise to the Trustees of the University, he “authorized and empowered” his daughter, who was his only child and heir at law, “to ratify and confirm said devise and bequest” in case it should fail by reason of his death within a year, and “she is desired and requested” to do so, and he further declares that “in case she complies with this request the devises and bequests to the said children of George Folsom and Charles Folsom are hereby revolted.” She did comply with his request and the devises and bequests to the children of George Folsom and Charles Folsom were thereby revoked, as this court has heretofore decided and still so holds. There now being “no other disposition made of the property in the will,” Patton v. Patton, 39 Ohio St., 590, it descended immediately to the heir, if her act of appointment, ratification or confirmation was ineffectual, and can there be any reasonable doubt that she might voluntarily relinquish the estate thus cast upon her or that she might waive the protection which the statute gave to her?

There was no trust in this will. The estate was not devised to Isabel to hold in trust for the trustees of the university nor in trust to convey to them. The remainder in the estate was not devised to her at all. The testator conferred upon her the naked power to appoint the remainder to the designated object. He imposed no conditions as to the manner of executing the power. He only asked that his wishes might be carried out. He did not attempt the futile project of compelling a conveyance to the devisees whom he had selected. The donee was merely “empowered” and he left it entirely optional with her whether she would carry out his purpose, his deliberate and stubborn purpose it seems. The context clearly shows that Isabel was at liberty to do as she might choose in regard to carrying out the testator’s wishes in regard to the devise to the trustees of the university. The mere use of-the precatory words “desire” and “request” will not be sufficient to create an enforceable trust or a power in the nature of a trust, when the context clearly shows that the testator’s intention was the contrary. “No authoritative case ever laid it down that there could be any other ground for deducing a trust or condition than the intention of the testator as shown by the will, taken as a whole, though no doubt in older cases that intention was sometimes inferred on insufficient grounds.” In re Williams (1897), 2 Ch. D., 28. It does not matter that a degree of confidence is reposed in the donee by the testator, for so long as it appears that the execution of the power is not obligatory, and it is left entirely to the discretion of the donee, no trust arises. Meredith v. Heneage, 1 Sim., 543; Williams v. Williams, 1 Sim. N. S., 358;. Toms v. Owen, 52 Fed. Rep., 417; Spooner v. Lovejoy, 108 Mass., 529; Huskisson v. Bridge, 4 DeG. and Sm., 245; Eaton v. Watts, 4 Law Rep. Eq., 151.

It is manifest that this testator, who was himself' a competent lawyer, fully understood the scope and. effect of the statute; and it cannot be presumed that he would defeat the purpose which he so obviously had in mind by an attempt to create a trust. Indeed it is clear upon all considerations that he did not intend to create a trust and studiously endeavored, to avoid doing so. The authorities above cited and. the numerous authorities cited by the counsel for the • defendants in error, fully sustain the contention that. the will of Henry F. Page conferred upon his daughter the naked power to appoint the remainder of his estate to the Board of Trustees of the Ohio State’ University, in her discretion; and in our construction of section 5915, Revised' Statutes, that is not. prohibited by either the letter or the spirit of the-statute.

But it is argued that the testator could not empower his daughter to do that which he could not lawfully do himself. We have already called attention to the fact that the mere act of making a will for • a benevolent or charitable purpose is not unlawful, and that such act is only made invalid for the protection of the heir when it occurs within a year prior - to the decease of the testator, and counsel seem to. overlook the other fact that, in this instance, the. power to ratify and confirm necessarily implies a deed confirming and conveying the property to the; appointee; for the donee of the power is authorized to appoint only after the devise and bequests to the trustees of the university ‘ ‘ shall fail or be held void for any cause. ’ ’ A will might not suffice because an appointment by will might fail in the same way; but she could sanction, carry out and make sure his desire by a conveyance; and it would seem that she could fully execute the power in no other way. Now can anybody doubt that the testator could have lawfully conveyed the property to the trustees of the university? If yea, then this argument falls to the ground; because this power was to be executed, and was executed, by a conveyance.

As we have already remarked the testator did not prescribe the mode in which the donee should execute the power. The form in which she should “ratify and confirm said devise and bequest,” as well as the execution of the power itself, was left to her discretion. It seems to have been deliberately and carefully drawn; and in view of the fact that the children of George Folsom and Charles Folsom do not take under the will, and of the fact that if the exercise of the power of appointment should for any reason fail in its purpose, the property would pass to the donee herself as intestate property, we have no trouble with the dual form of the instrument by which she executed the power. It may be construed as an execution of the power granted in the will or as an original conveyance or both, and it is operative to invest the Board of Trustees of the Ohio State University with a full and perfect title to the property therein described. But if by reason of mistake, accident or ignorance the power was defectively executed, it is within the power of the court in this case to make it effectual. “Whenever a man, having power over an estate, whether of ownership or not, in discharge of his moral or natural obligations, shows an intention to execute such power, the court will operate upon the conscience of the heir or other person benefited by the default to make him perfect this intention.” Chapman v. Gibson, 3 Brown Ch., 229; Barr v. Hatch, 3 Ohio, 527; Bispham, Eq., secs. 193, 195.

There is an ultra-refinement of logic in the contention that Isabel Page could not make and deliver a deed of confirmation under the power conferred in the will and a deed of conveyance in the same instrument, delivered in the same instant of time. It would be unprofitable to discuss this point at length. Upon the death of the testator within twelve months from the date of the will the property devised and bequeathed to the' trustees of the university immediately vested in the children of his brothers, subject to be divested by appointment to the trustees by the donee of the power. Patton v. Patton, 39 Ohio St., 590; Trustees of University v. Folsom et al., 56 Ohio St., 701. Prom the death of the testator it was a future contingent estate in Isabel Page which might be made absolute by appointment to the object designated by the testator which would determine the interests of the children of the testator’s brothers, Board of Trustees, etc. v. Folsom, 56 Ohio St., 701, and by the failure of the appointment by reason of invalidity or for any other reason. This future contingent interest she might convey, Thompson’s Lessee v. Hoop, 6 Ohio St., 480, and if it became absolute thereafter the title' would relate back to the time of the conveyance.

The judgment of the circuit court is

Affirmed.

Spear, G. J./Shattck, Price and Crew, JJ., concur.  