
    WILLS.
    [Hamilton (1st) Circuit Court,
    January Term, 1901.]
    Swing, Giffen and Jelke, JJ.
    Margaretta M. Frank v. C. C. Archer et al., etc.
    1. Agreement Between Beneficiaries Opposed to Wide, Void.
    Under a will devising testator’s residence property to his wife, so long as she remains his widow, and one-third of the income of his real estate during life, in lieu of her dower and distributive portion, and devising the balance of his estate to trustees to pay the rents and income thereof equally to his children or their issue, until the death of the last of his children, the property then to be deeded in fee to the grandchildren, lull power being given to improve the real estate, and to mortgage to make the improvements, in which latter case the income of the property so improved must first be applied to the payment of such mortgage, an agreement between the widow and children for the erection of a business block on the family residence property and certain lands adjoining, a mortgage to he given by the trustees therefor, and providing that the income from the property so improved shall be applied one-third to the payment of such indebtedness and the balance, two-thirds, to the widow, cannot be enforced, though the parties acted in good faith and in the interests of themselves and the grandchildren, inasmuch as such agreement is opposed to the specific provisions of the will.
    2. Duty of Court where Contract is Executed.
    Where such an agreement has been executed by the trustees and the residence torn down, the building erected and the mortgage given, it is the duty of the court to so construe the rights of the respective parties under the will as to restore them as nearly to their former position as may be.
    3. Rude as to Allowance to Widow and as to Balance.
    Under such circumstances the widow should be allowed such proportion of the income of the whole improved tract as the value of the ground on which the residence was situated, if unimproved, bears to the whole improved tract, without taking into consideration the value of the residence torn down; in. balance of the income neither the widow nor the children are entitled to share until the mortgage is paid.
    Heard on Error
    
      L. C. Black and C. C. Archer, for defendants.
    
      Sidney C. Strieker and Henry P. Kauffman, for plaintiff, cited :
    Organ v. Stewart, 60 N. Y. 413,420 ; Breuer v. Hayes, 10 Dec. (Re.) 583; Holt v. Eamb, 17 Ohio St. 374, 387 ; Bradford v. Beyer, 17 Ohio St. 388 395 ; Hemminway v. Davis, 24 Ohio St., 150, 164.
   Giffen, J.

This was a petition originally filed for the construction of the will of A. W. Frank, deceased. It came on for hearing in this court, however, upon a supplemental petition which involves the distribution of the rents and income of a business block situated on Race street, between Sixth and Seventh, and what effect the agreement that was made by the widow and the dhildren, and attached to this supplemental petition, had upon the duties of the trustees under the will; whether, or not, they were modified thereby.

The third clause of the will provides that:

“I give to my wife the use of our residence now occupied b3T us as long as she remains my widow. I also give to her absolutely one-third of the net rents and income of my real estate as the same accrues during her natural life in lieu of and as her dower and distributive share of my estate.”

Section seven of the will provides that:

“All real estate in the city of Cincinnati subject to my wife’s interest therein as above I give and bequeath and devise to my wife Margaretta Maria Frank, my son Theodore and my brother Godfrey, and to the survivors or survivor of them, in trust however for the following uses and purposes that they hold and manage the same and pay over semi-annually the net rents and income thereof in equal shares to our children or the issue of any deceased child per stirpes, until the death of the last of our children with full power to improve, if deemed proper, any such piece of real estate and to give a mortgage on any of it to raise money lor making such improvement, in which case, however, the income of the property so improved must first be applied to pay off such mortgage.”

It is the latter part of this clause of the will that is involved in this suit, for the reason that the agreement spoken of between the widow and the children was oué providing lor the improvement of this lot upon Race street, and that, in pursuance of this agreement, the trustees did erect a six-story business block upon this strip ol ground fronting seventy-one feet on Race street. Of this frontage forty-six feet was the family residence spoken of in item three of the will, the use of which was given to the widow for her life, and the adjoining twenty-five feet were no part of the residence property.

It was agreed, in this contract attached to the supplemental petition, that the income from the property so improved should be applied, after ■ the payment of necessary expenses, after the three years, $5,000 each year to the payment of the principal, and the balance remaining two-thirds should be paid to the widow.

It is contended that this agreement between the widow and children , and the action of the trustees thereunder cannot be carried out, for the reason that it is contrary to the will of A. W. Frank. And undoubtedly it does run counter to that provision of the will which requires, where improvements are made by the trustees, that such improvements shall be first paid out of the income, before the distribution to the children and widow thereinbefore provided for shall be carried out.

The will also provides that, at the death of the last child, the real estate shall be conveyed by the trustees, in fee, to the grandchildren. So that this provision would also interfere with the rights of the grandchildren, under the will. Because, if the income is not applied to the payment of the money borrowed for the erection of these improvements, and that indebtedness still exists at the death of the last child, the grandchildren receive the property with the incumbrance made by and for the benefit of the children and the widow.

The court, therefore, has come to the conclusion that it would be opposed to equity and unlawful for the court to undertake to direct the enforcement of this agreement, as it is directly in conflict with the provision of the will of A. W. Frank.

Undoubtedly the parties to this agreement acted in good faith and supposing it for the best interests of themselves as well as the grandchildren ; but we are inclined to think that it might, in a certain event, be to the advantage even to the grandchildren to carry out the agreement ; but, it being uncertain, and also being opposed to the specific provision of the will, the court does not feel authorized in attempting to enforce such an agreement.

That being the case, the next question is, what can the court do towards the enforcement of the rights of the widow and the children under the will ? They can not be restored to the same position they were in before. But it is the duty of the court to so construe them as nearly to their former position as may be.

The third provision of the will, we think, clearly — although some of counsel express a doubt, in the argument, — gives to the widow a life estate in the residence property. By the terms of’ this agreement she surrendered possession of this property. The residence, itself, was torn down, and also the building upon the twenty-five feet adjoining thereto, and this new structure erected in their place.

Counsel for the widow contend that she would be restored to her rights by ascertaining the value of the residence property, the value of her one-third interest in the net income from the twenty-five feet adjoin- . ing, and allowing her such proportion of the rents as the value of these two pieces of property bear to the entire property. In other words, the testimony showing the value ot the naked ground to be $2,000 per front foot, the cost of the building being $65.000, and that the building on the residence property was worth $25 000, and her share would be something like $132,000, and her proportion would be as 132 to 225 or 230; something like that. I forget, just now, what the figures are. But they embrace in that the residence building, which was torn down. There is not any testimony before this court to show that any of the material that came from that torn-down building entered into the construction of the new building ; and, although it may have been worth $25,000 as it stood on the old lot, it does not appear that it has any value in connection with that property as it now exists. Consequently, we must eliminate the value of the residence, itself, from our calculation.

The forty-six feet, as we have said, belonged to the widow for life. So long as she occupies this property, although there is a general provision in the will permitting the trustees to improve, they could not improve this forty-six feet. Consequently, when it was improved it was with the consent of the widow. And our conclusion is that, as to that forty-six feet, the widow is entitled to such proportion of the rents derived from this property as the value of that particular lot represents.

It is insisted, as I have already said, that that same rule should apply to the twenty-five feet adjoining the residence property. But that was deeded, as we understand this will, absolutely to the trustees with power in them to improve for the benefit of the estate, if they saw fit.

But counsel call our attention to that provision of the will which provides that:

“ If from the need of new improvements on my city real estate, or from any other cause, it may be found difficult to ascertain for my wife the one-third of the net rents or income of my real estate, at the request of any party interested, my wife is to have the same set off to her in any such piece of real estate as comes under our statute for setting off dower, the dower to her set off to be estimated independent of any improvements that may have been made after my death.”

We confess that it is difficult, after reading this claim, it was intended, that the wife, independent of improvements made by the trustees, was nevertheless to have her one-third interest in the net rents and income of the real estate. But we must remember that the situation, as it now presents itself, was brought about-by an agreement between the widow and the children. The children necessarily, by reason of this agreement, must surrender their right to the income on this twenty-five feet as well as the forty-six feet, at least for the present, until this incumbrance of $55,000 is removed. And we think that, the agreement having been entered into by the parties, and this situation having been brought about by the widow and the children, the widow should unite and surrender some of her rights, along with those of the children; and that she is, therefore, not entitled to that proportion of the rents and profits that the value of this twenty-five feet bears to the whole.

So that it reduces itself to the value of the forty-six feet. As before said, the testimony is undisputed that the value of that was $2,000 per front foot, which would make $92,000 for the forty-six feet, and $50,000 for the twenty-five feet, and $65,000 the cost of the new improvement, eliminating, as before said,, the value of the residence, which was destroyed in removing from the lot. The ratio, therefore, would be as 92,000 is to 207,000; or, in other words, nine-twentieths of the net income after paying the taxes, insurance and repairs.

The decree, therefore, will be in accordance with this finding.  