
    Phillips et al. v. Herron et al., Trustees, et al.
    
      Entailment of real estate — Section 4%00, Rev. Stat. — Extent of inhibition.
    
    1. The act to restrict the entailment of real estate (Revised Statutes, section 4200), supersedes the rule of the common law upon the subject.
    2. It-inhibits only devises to persons who are in fact more remote than the immediate issue of persons in being at the death of the testator.
    3. Within the meaning of the act, a childinutero&iüie testator’s death is in being.
    (Decided December 15, 1896.)
    Error to the Superior Court of Cincinnati.
    This suit concerns real estate only, and involves the right and duty of the trustees under the will of Thomas Phillips, deceased, to carry out all of its terms, including the following:
    “3d. My said trustees shall, from time to time, pay over one-third of the net income arising from the said two-thirds of my estate to my son George during his natural life, and at his death to his children, or the survivors of them, in equal shares during the natural life of each of them. In the case of the death of either of the children of my son George without lawful issue, the share of such child shall go to his brothers and sisters during their lives, and to the issue, if any, in fee, of any that may be dead; and in case of the death of all of said children without lawful issue, then the said shares shall be held by said trustees in trust for the same purposes as hereinafter provided for the remaining two-thirds; but in the ease of the death, of either of the children of my son George, leaving issue, such issue shall receive, as owner, in fee, the share of said trust fund of which said children had the income.”
    The testator died in March, 1870. His son George died in March, 1873, leaving surviving him five children, the youngest of whom, Maurice Dudley Phillips, was born in September, 1870. A statement of other facts would only impose the duty of showing that they are immaterial.
    
      Thomas McDougal and Alfred O. Cassatt, for plaintiffs in error.
    1. The devise of the fee under the third clause above is void under the Ohio law relating to perpetuities.
    2. The fee should now vest in the children of George, thus terminating the trust as to them.
    Where there is a gift to .a class of persons some of whom are incapable of taking by the rule against perpetuities, the consequence is that the gift fails altogether. (Greenwood v. Roberts, 15 Beav., 92; section 4200 Rev. Stat.
    In this case the gift was of an “aggregate sum,” viz., the fee of one-third of the trust estate; “to a body of persons uncertain in number at the time of the gift,” viz.,'the grandchildren of the testator’s son George; “to be ascertained at a future • time,” viz., when all of the children of George had died; “in equal or some other definite proportions, the share of each being dependent for its amount upon the ultimate number of persons.”
    As George was living at the time of the testator’s death, and might have had children after that event, it was possible that some of his grandchildren, the class who were to take the fee, might not be the immediate issue or descendants of persons in being at the testator’s death. They would then be too remote under the statute.
    It thus appearing that the devise was made to a class some members of which might not be able to take, we are now ready to lay down the principle that such a devise is void as to the whole class. Leake v. Robinson, 2 Meriv., 363. Jee v. Audley, 1 Cox, 324; Pearks v. Mosely, 5 App. Cas., 714; Greenwood v. Roberts, 15 Beav., 92; Seaman v. Wood, 22 Beav., 591; Webster v. Boddington, 26 Beav., 128; Caldwell v. Willis, 57 Miss., 555.
    It is true that a child en ventre sa mere is to be considered as born when it will be for its benefit-to be considered. (Gray on Perp., section 220.) But in this case it will not be for the benefit of Maurice Dudley to be considered as born. If our contention in this brief is correct and the trust shall be determinated, Maurice Dudley will receive the fee of his share, while if it is continued, he only receives a life estate. Can he then be considered as born, for the purpose of continuing the trust?
    Regard is had to possible and not actual events; and the fact that the gift might have included objects too remote is fatal to its vitality irrespectively of the event. Lewis on Perpetuities, 171 et seq.; 1 Jarman on Wills, 266 (5th ed.); Routledge v. Dorril, 2 Vesey, Jr., 357; Wheeler v. Fellowes, 52 Conn., 244; Rand v. Butler, 48 Conn., 293.
    If any further authorities are needed to establish this point, the following American cases may be cited : Jocelyn v. Nott, 44 Conn., 55; Nightingale v. Burril, 15 Pick., 104; Brattle Sq. Church v. Grant, 3 Gray, 142; Sears v. Russell, 8 Gray, 86; Everitt v. Everitt, 29 Bar. 112; Fosdick v. Fosdick, 6 Alien, 41; Jackson, v. Billinger, 18 Johns. 367, 381; Donohue v. McNichol, 61 Penn. St., 73; Whelan v. Reilly, 3 W. Va., 597; Amory v. Lord, 5 Seld., 403; Hawley v. James, 16 Wend., 61; Sears v. Putnam, 102 Mass., 5; Loring v. Blake, 98 Mass., 253.
    It appears plain from the facts in the case, and from the authorities and reasons cited, that the gift of the fee to the grandchildren of George was a gift to a class some members of which might not be able to take.
    The Ohio statute is a command addressed to the giver or grantor of real estate. It makes certain conditions which he must comply with in making ,his gift, and at the time he makes the gift.
    Now, in the case at bar, the testator made a gift to the grandchildren of George as a class.
    It is evident, therefore, that the terms of the statute were not complied with, for it is imperative that the estate must be given to the immediate issue or descendants of persons in being. R. R. Co. v. Recory, 3 Ohio St., 201; Gray on Perpetuities section 200.
    It is clear that before the year 1811. the common law rule against perpetuities was in force in Ohio, as to realty. Turley v. Turley, 11 Ohio St., 180; Potter’s Dwarris on Statutes and Constitutions, 185.
    • This case recognizes the application of the common-law principles to the statute on perpetuities. Alfred v. Marks, 49 Conn., 473.
    The fee should now vest in the children of George, thus terminating the trust as to them-Now, in the construction of wills, it is a well set. tied rule, sanctioned alike by reason and authority, that the intention of the testator must govern so far as the law will permit. Gibson v. McNeely, 11 Ohio St., 131.
    
      W. G. Herron, for defendants in error.
    The first question in this case is whether the devise of the fee simple in the will in the case at bar is good, as to the real estate, under the rule against perpetuities at common law.
    The will of Thomas Phillips, after giving life estates to the children of George Phillips, grandchildren of the testator, contains three provisions, or better, provision for three contingencies. We invert the order of the contingencies somewhat, in order to bring them in their logical sequence.
    Contingency A. The death of any of the children of George Phillips, grandchildren of the testator, leaving issue. In that case such issue gets a fee in the share of their parent, a grandchild of the testator.
    Contingency B. The death of any of the children of George Phillips, grandchildren of the testator, without issue.
    In that case the share of the child so dying is to go in fee to his or her brothers or sisters during their lives, and to the issue, if any, in fee of any that may have died.
    Contingency C. The death of all of the children of George Phillips, grandchildren of the testator, without issue.
    In that case the fee is to be held by the trustees upon certain trusts.
    Contingency C. It is admitted that the devise of the fee simple is not good at common law under this contingency.
    
      Contingency A. This .contingency is the death of any child of George Phillips leaving issue; in that ease the share of such child goes to its issue in fee. Now", if this were the only contingency in the will, there can, it is conceived, be no doubt that the devise of the fee simple to the is sue would be good at common law, as to the issue of those children who were born in the lifetime of the testator (though not good as to the issue of those children' of George who were not born in the lifetime of the testator), for the simple reason that the devises to such “born” children and to their issue are separable from the devises to other children not so “born” and their issue. The issue of “unborn” children and the issue of “born” children (to abbreviaté in this way) do not form a “class” to which the fee simple, as a whole, is devised (as is supposed by counsel for plaintiffs in error), but the share of the “born” child goes to its issue, without regard to the issue of “unborn” children, and without waiting for the death of such “unborn” children. The authorities upon this point are numerous and uniform. Cattlin v. Brown, 11 Hare, 372; Wilson v. Wilson, 28 Law Journal Chancery, 95; Knapping v. Tomlinson, 34 Law Journal Chancery, 3; Bentnick v. The Duke of Portland, 1 Ch. Division, 693; Pearks v. Moseley, 5 App. Cases, 714; In re Russell Dorrell v. Dorrell, 12 Rev. Rep., 23; Lowry v. Muldrow, 8 Rich. Eq., 241; Hills v. Simonds, 125 Mass., 536; Dorr v. Lovering, 147 Mass., 530.
    Contingency B. The same arguments and the same authorities apply to the devise of the fee under this contingency. Contingency B is the death of any of the children- of George Phillips, leaving no issue; in that case the fee simple of the share of the child so dying without issue is to go to the brothers and sisters of the one so dying-, and if any such brother or sister has died before that time, leaving issue, then to such issue. Now here, no more than under Contingency A, is the fee as a whole given to any “class” as a whole, nor is the vesting of the fee postponed until the death of some unborn child and the determination of its issue. Under Contingency B, the fee is to go either to the brothers and sisters of the life tenant, who are plainly the “immediate issue of persons in being ;” and if any such brother or sister be dead,’ then the fee goes to the issue of such brother or sister, who are plainly the “immediate descendants of persons in being.” Turley v. Turley, 11 Ohio St., 173.
    The argument up to this time has been based upon the assumption that the common-law rule against perpetuities exists in full force and effect in this state, and upon that assumption the contention has been that, even assuming this common-law doctrine to apply in this case, the main portion of the will of Thomas Phillips, i. e., both Contingencies A and B thereof, is valid and good. There exists, however, a statute in Ohio relating to this subject matter, and our contention is, therefore, having that statute in mind, that the rule against perpetuities is either (a) not law in Ohio at all, or (&) only to an extent which prevents its operation in this case. Section 4200, Revised Statutes of Ohio.
    The rule against perpetuities is not law in Ohio. This rule is a rule governing future interest, it is the only rule governing them, and it is complete. Gray on Perpetuities, section 4. It was judge made, and at the time this country was settled, and especially at the time the state of Ohio was settled, it was in an unformed condition. Gray, chap. 5, part 6, especially sections 169 and 200.
    Since the statute was passed, the rule has never been mentioned in statutes or decisions, but it has always been assumed that the subject was governed by the statute. Walker’s American Law, 296, 310, and 324.
    Under the statute, assuming that the statute governs this case, the bequest to the issue of the children of George Phillips is good.
    George Phillips being dead, can have no more children. All his children except the last, Maurice Dudley, were born in the lifetime of the testator. The last was conceived at the time of the death of the testator, and therefore, was “in being, ” according to the general meaning of these words.
    The children of George Phillips were,therefore, all in being at the time of the death of thq testator, and their issue, which will be the immediate issue of persons in being at the time of the death of the testator, are directly within the very language of the statute. McArthur v. Scott, 113 U. S., 362; Alfred v. Markes, 49 Conn., 473; Wheeler v. Fellowes, 52 Conn., 238.
    The only question arises as to the one of George Phillips’ 'children named Maurice Dudley. As appears from the statement of facts, Maurice Dudley was born on September 19, 1870, and Thomas Phillips died on March 8, 1870. Maurice Dudley was therefore, to use techanical language, en ventre sa mere, at the time of the death of Thomas Phillips. The question therefore is whether such a person isa “person in being” within the meaning of section 4200, Revised Statutes. That such a person is seems to be established by the language of the Supreme Court in Starling, Executor, v. Price et al., 16 Ohio St., 29.
    In conclusion it is submitted that the foregoing arguments establish:
    1. That under the common law the devise of the fee in the will of Thomas Phillips, either under Contingency B or under Contingency A, is good, being not to a “class,” but to separable lines.
    2. That under section 4200 of the Revised Statutes the devise of the fee simple, even though it may be bad at common law, is good as to all those persons who are either the immediate issue or the immediate descendants of persons in being at the time of the death of the testator.
    
      'William Worthington, for Kate P. Leaman, defendant in error.
    ■ According to the terms of the will two-thirds of the residue of the estate, after satisfying sundry bequests, is given to trutees, in trust, as to one-third of the two-thirds, to pay its income to testator’s son, George, for life; remainder to his children for life; remainder as to the portion of the principal the income of which was paid to each child, to the issue of that child in fee, and in default of such issue surviving, to his or her brothers and sisters for life, and to the issue of predeceased brothers and sisters, by way of substitution for them, in fee.
    It cannot be doubted that the life estate given to George Phillips is valid. It cannot be doubted that the life estates in remainder given to his children upon his death are valid.
    But it is contended that the estates in fee, expectant on these remainders, are void because, though in fact George did not, yet he might have had children conceived after the death of his father ; and then it is urged that these estates in fee, clearly given to George’s grandchildren, and to them only, should he advanced one generation and vested in his children, though these children should he childless, to merge in, or rather to destroy, the life estates given to those children.
    That there is no warrant in the will for this conclusion is obvious; for there is nothing in it manifesting an intent under any circumstances to vest a fee in George’s children. On the contrary, the opposite intention is clearly and positively expressed.
    That the conclusion is contrary to the rule ordinarily applied is well settled. Gray on The Rule against Perpetuities, section 247; Lewis on Perpetuities, 657 ; 28 W. L. B., 330.
    Tne conclusion also is opposed to the other well established rule — that the rule against perpetuities is a command of law, and not a guide to construction ; and that where the meaning of the words used in the instrument is clear, it cannot be changed, affected, or in any degree altered by the rule against perpetuities and its effects. Pearks v. Moseley, 5 App. Cas., 714. Gray on The Rule against Perpetuities, sections 629-633; Marsden on Perpetuities, 262, 1 Jarman on Wills, *293.
    It is said, however, that a general intent to benefit the family of George Phillips is manifest in this will; and, although this general intent cannot be carried out in the particular way specified by the testator, because that way is contrary to the express rules of law, yet the courts will carry it out in some other way, will sacrifice the particular to the general intent, and, rejecting the former, effectuate the latter under what is known as the oy pres doctrine. But this doctrine i& never used to convert a life estate into a fee simple, but only into a fee tail.
    This doctrine is fuliy explained, and its limitations given, in Gray on the Rule against Perpetuities, sections 643-670; 1 Jarman on Wills, 297-302; Marsden on Perpetuities, 268-274; Theobald on Wills, 2d ed., 441-443.
    Among the limitations universally recognized are the following : That the doctrine has gone to the very verge of the law, and is not to be extended one step further; for in the effort to serve the general and particular intent, both are destroyed. Brudenell v. Elwes, 7 Ves. Jr. 382.
    That it does not apply to a bequest of personalty. Routledge v. Borril, 2 Ves. Jr. 357.
    Nor, consequently, of a mixed or blended fund, of both personalty and realty, given for one purpose. And that, as to unmixed real estate, it is never applied where the void limitation is one in fee simple, or so as to enlarge a life estate into a fee simple. Bristow v. Warde, 2 Ves. Jr. 336; Hale v. Pew, 25 Beav., 335; Wood v. Griffin, 46 N. H., 230.
    All of which are in effect summed up in one limitation, constantly announced, that “You cannot apply the rule where the effect of so doing will be to make the estate devolve in a line of succession different from that which the testator has expressly designated.” Hampton v. Holman, L. R., 5Ch. Div., 183.
   Shauck, J.

It is admitted by all concerned that the trustees are seeking to pursue strictly the terms of their trust as defined in the will of Thomas Phillips, if the foregoing provision of that will is valid in all respects. But the plaintiffs in error contend that, in so far as it attempts to devise an estate to the great grandchildren of the testator, it is void because in violation of the laws of the state to restrict the entaiiment of real estate, and that in consequence thereof the estate remains absolute in the issue of the first donee in tail. Our statute upon the subject, (Revised Statutes, section 4200), passed December 17, 1811, (S. & C., 550), is as follows:

“No estate in fee simple, fee tail, or any lesser estate in lands or tenements lying within this state, shall be given or granted by deed or will to any person or persons but such as are in being or to the immediate issue or descendents of such as are in being at the time of making such deed or will; and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in taii.”

While it is true that this is not an enabling act, it is a limitation upon the general authority to devise “at will and pleasure * * * all estates in lands, tenements, etc.,” conferred by the act of February 18, 1808,’Chase, St., 571, (Revised Statute, Sec. 5914). If the devise in question is not within the limitation, it is valid under the general authority. This supersedes inquiry as to the scope of the rule of the common law upon the subject. The statute does not contemplate mere possibilities. It forbids devises to persons who are in fact more remote than the immediate issue of persons in being at the time of the testator’s death. That further issue of the first donee in tail might come into being, is immaterial. In this view it is clear that the will contemplates no contingency in which the fee should vest in any one more remote than the immediate issue of a person in being at the time of the testator’s death, if the youngest son of George was then' in being.

Maurice Dudley, at the time of the testator's death, was en ventre sa mere. To say he was in being is only to give unrestricted significance to a term used in the statute without restricting qualifications. Petal existence in statutes upon this general subject is regarded as being. Gray on Perpetuities, Sec. 220; Starling's Ex'r. v. Price, 16 Ohio St., 29; Turley v. Turley, 11 Ohio St., 173; McArthur v. Scott, 113 U. S., 340.

Since all the great grandchildren of the testator may take according to the terms of the devise, it is not necessary to consider the proposition that they take as a class.

Judgment affirmed.  