
    CONSTRUCTION OF WILL.
    [Circuit Court of Hamilton County.]
    Theodore M. Harding, Trustee under the Will of Theodore Marsh, v. Sarah D. Marsh et al.
    
    Decided, June 19, 1906.
    
      Will — Construction of — Where there was a Provision for a Life Estate— Then Estates in Fee Tail — Then Estates in Fee.
    
    Under the will of M his estate passed to his wife for life, then to his sisters in fee tail, and then to their issue in fee simple; or in the absence of issue of any sister, her share to pass to the surviving sisters or sister in fee simple.
    The action was brought in the court of common picas by Theodore Harding, trustee under the will of Theodore Marsh, to construe the will. The issue was as to whether Flora C. Knight, a granddaughter of one of the sisters of the testator, had any interest in the estate. The grandmother was a sister of the testator, and died subsequent to his death, but prior to the death of his widow to whom a life estate was given. This sister left a son, who died testate bequeathing his property to Flora C. Knight, his' only child. The fourth and lifth items of the will are subjoined:
    “Fourth. It is my will that at the death of my said wife, Rachel Marsh, and at the termination of the life estate herein created, all of my said estate shall become the property and vest in my sisters, Margaret A. Knight and Sarah I). Marsh, of Hartwell, Hamilton county, Ohio, and Mary G. Harding, now residing in Canon City, Colorado, and the heirs of their bodies forever: And in the event of the death of any of my sisters, wdthout issue, the share to which said sister would be entitled, shall be divided or distributed among my remaining sisters, or in the death of both to my remaining sister, or in the death of all- to the heir or heir of such sister or sisters as his or their mother would have .taken if alive, subject, however, to the conditions and provisions of the trust herein created, namely:
    
      “That immediately after the decease of my said wife, Rachel Marsh, and the termination of said life estate as herein provided, for a period of ten jrears, all the income arising from my estate, real or personal, of whatever nature and description shall be collected by my nephew, Theodore M. Harding, now residing in Canon City, Colorado, .whom I appoint as a special trustee for that purpose and the trust herein created — and shall be expended and distributed by him as follows:
    
      “{a) That one-half of all such gross income arising from my estate for a period of ten years'after the death of my said wife, Rachel Marsh, shall be held by the said Theodore M. Harding, or his successor, as a fund in trust for the erection and construction of a good substantial business block on the southeast corner of Sixth street, and Central avenue in the city of Cincinnati, 0., to be known and designated as the “Marsh Block,” in commemoration of my father, John Marsh, and said trustee, or his successor, is hereby authorized and directed to superintend the erection and construction of said building or block; and in order to increase the trust fund for that purpose the said trustee, or his successor, is hereby directed to invest such portion of my income from time to time as his judgment may direct in securities of the United States, the state of Ohio, or the city of Cincinnati. ''
    “ (Z>) That my said trustee, or his successor, is hereby authorized and directed after the payment of all taxes, assessments and repairs from one-half of the gross income arising from my estate for said period of ten years after the death of my wife, Rachel Marsh, and the termination of the life estate herein created, to pay the residue of such one-half of the gross income for the period aforesaid in semi-annual payments, to my said sisters, Margaret A. Knight, Sarah D. Marsh and Mary C. Harding, or their legal heirs according to the former provision of this section as to the distribution of my estate, and chat my said trustee, or his successor, account annually to the Probate Court for Hamilton County, Ohio, for all ‘moneys so collected, invested and expended by him as trustee aforesaid, and that his compensation in the premises be fixed by said court.
    “Fifth. It is my will that at the expiration of the said period of ten years after the death of my wife, Rachel Marsh, the said trustee, or his successor, shall make distribution of all of the personal property’ belonging to my estate among my said sisters, Margaret A. Knight, Sarah D. Marsh and Mary C. Harding, or their legal representatives as heretofore provided in this will as to distribution of my estate, and that partition of all of. my real estate be had as soon thereafter as practicable, under the statutes of Ohio, among the said Margaret A. Knight, Sarah D. Marsh and Mary C. ITarding, or their legal heirs, according to their respective interests.”
    
      Samuel B. 1-IammA and Wm. Worthington, for plaintiff.
    
      John B. Sayier and Lawrence Maxwell, contra.
    
    
      
       Affirmed by the Supreme Court without report, May 14, 1907.
    
   Per Curiam.

By the fourth item of the will of Theodore Marsh we think he disposes of his estate in the following manner:

All of his estate went to his sisters as an estate in fee tail; upon the death of either leaving issue, said issue came into the enjoyment of said estate in fee simple. Upon the death of either sister leaving no issue, such share passed in fee simple to the surviving sister or sisters in fee simple.

Upon the death of Margaret A. Knight, her one-third share became an estate in fee simple in her only issue, Benjamin Knight, and upon his death his share would vest in his daughter, Flora Cornelia Knight, if he had died intestate; but Benjamin Knight having died testate his estate passed by his will. Upon the death of Sarah D. Marsh, her share, which she held in fee tail, vested under this item in her sister, Mary C. Harding, in fee simple.

Under the fifth item of his will his personal property is to bo distributed in the same manner as his real estate is given under the fourth item.

A decree should be entered in this court along the same lines as that entered in the court of common pleas.  