
    Common Pleas Court of Montgomery County.
    Clement Watkins v. Clement Watkins, as Executor.
    Decided November 18, 1931.
    
      Mahlon Gebhart, for plaintiff.
    
      Charles D. Haas, for defendant.
   Snediker, J.

This action is brought for a construction of the last will and testament of Josephine Sullivan, late of this county, deceased, and for a decree to quiet the title to lot 338 on the plat of the city of Miamisburg; and, if a tenancy in common is found to be in plaintiff, for a decree in partition; together with such other equitable and proper relief as he may be entitled to.

Josephine Sullivan was the mother of the wife of the plaintiff. Mary Baber Jackson was her niece. Mrs. Joseph P. Murphy was her sister. Albert Baber was her brother. At the time of her death Josephine ■ Sullivan was the owner of the lot referred to. She died testate and among other things in her will provided:

“Item Second. I give and bequeath to my beloved daughter, Josephine Watkins, all of my personal estate of every nature and kind whatsoever, to be hers absolutely. And I devise and bequeath to her, my said daughter, all of my real estate for and during her natural life, she to have the use, income, profits, and benefits arising therefrom; and at her death I desire all my said real estate to go to her children and the heirs of their bodies. Should I survive my said daughter, Josephine Watkins, then I desire that all of my personal estate of every nature and kind whatsoever to go to my said daughter’s children or their heirs, to be theirs absolutely.

“Item Third. If at the time of my said daughter’s decease she leaves no issue or heirs of their bodies, then in that event I devisé and bequeath in fee simple all of my said real estate to my beloved sister, Laura, whose married name at this time is Joseph P. Murphy, Peru, Indiana, if she is then living. Should she be not living, then I devise and bequeath all of my said real estate to my beloved brother, Albert Baber, and his heirs in fee simple forever.”

There is no other provision of the will which in any way affects the two items quoted.

At the time of the death j>f the testatrix there survived her Josephine Watkins, her daughter, the wife of the plaintiff, as well as her brother Albert Baber and her sister Laura, or Mrs. Joseph P. Murphy. From March 19, 1914, the date of the death of Josephine Sullivan, until her death on January 9, 1931, Josephine Watkins and her husband occupied and enjoyed lot No. 338 in the city of Miamisburg. When she died Josephine Watkins left a will in which she devised and bequeathed to her husband, Clement Watkins, and to his heirs and assigns forever, all of her property, both real and personal.

An attempt has been made to locate Mrs. Joseph P. Murphy but, as the testimony shows, all efforts have failed, and it appears to have been impossible to discover where either she or any of her heirs, if any there be, are located.

Albert Baber died intestate on December 4, 1929, and it is claimed left surviving him as his sole heirs at law Mary Baber Jackson and Josephine Watkins, plaintiff’s wife, who has deceased since his death. On the theory that he is now the owner of the undivided one-half of lot No. 338 and his tenant in common as to the other undivided one-half is Mary Baber Jackson, this plaintiff has brought this action for the purposes heretofore indicated.

Has he the undivided one-half interest in that lot as claimed by him, or has he any interest at all?

For the purpose of determining what title, if any, the plaintiff has in this property it becomes necessary for us to construe Items Second and Third of the will of Josephine Sullivan. By Item Second she gives to her daughter Josephine a life estate in lot No. 338, with remainder to the heirs of her body. By Item Third she provides that if at the death of Josephine she leaves no issue or heirs of her body, then the fee simple estate in all of her real estate is to go to testatrix’s sister Laura, provided Laura is then alive. But if Laura is dead at the time of the death of Josephine, then the testatrix devises and bequeaths lot No, 338 to her brother Albert and his heirs in fee simple and forever.

The devise to Laura is manifestly contingent upon her survival of Josephine. The devise to her brother Albert is contingent on the death of Laura prior to the decease of Josephine, childless. Under none of the rules could the devise of Albert and his heirs be construed to be a vested remainder. As said by Cruise in his Digest of the Law of Real Estate, in volume 2, at Section 51,

“Where there is a contingent limitation in fee absolute no estate limited afterwards can be vested.”

Fearne in his work on Remainders says, in volume 1, on page 375:

“A remainder cannot vest after a remainder in fee.”

If the devise to Albert be regarded as an executory devise then it did not vest at the death of the testatrix but only on the happening of the future contingency in the devise expressed. Alexander on Wills, Vol 11, Section 1017. It was only, then, after the death of Josephine Watkins, her aunt Laura not surviving her, that the remainder to the heirs of Albert vested in lot 338. As an heir of Albert, Josephine could not and did not take an interest in lot 338, and had not such interest at the time she made her will on January 6, 1931.

This construction ought to be given to the rights of the parties for the reason that her mother, Josephine Sullivan, could not be reasonably said to have intended that she should take consequent upon her death; and, as a matter of law, she did not take, and could not and did not by her will and by her attempted devise, found at Item Second thereof, vest any title in this plaintiff. The only heir of Albert, so far as we are informed, who could take under the devise in the will of Josephine Sullivan was Mary Baber Jackson. Whether or not Mary Baber Jackson is now the owner of lot 338 as against her aunt Laura we do not decide.

Not finding that this plaintiff is a tenant in common in this real estate, and therefore finding that it would be improper to decree partition, the case is dismissed.  