
    Johnson et al. v. Johnson.
    
      Wills — Construction of — Remaindermen—When devisee holds as trustee— When third parties hold as trustees.
    
    1. A testator, after providing for the payment of his debts, used the following language in his will • “Second — I give and devise unto my beloved wife, and her assigns, all of the remainder of my property, both real and personal, however the some may be known, or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper; but, if at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters, and their children, if deceased, the children to have the same amount the parent would be entitled to if living.” Held: That under this will the widow took only a life estate in the property, both real and personal, with power to bargain, sell, convey, exchange or dispose of the same as she might think proper for consumption in her life support, and that what remained at the time of her death, unconsumed in supporting her, belongs to the remainder-men designated in the will.
    2, The widow under this will was, by implication, a quasi trustee for those in remainder, and the interest of the brothers and sisters of the testator, in the unconsumed property, was a vested right which could not be destroyed by the act of the widow in disposing of the property by gift to a third party, or otherwise than for her support or the benefit of the estate.
    
      3. A third party acquiring said estate from her by gift or fraud, or by collusion with her, to the injury of the vested rights of those in remainder, and with knowledge of the will, holds the same, and the fruits thereof, as a trustee for the remaindermen, and liable as-such trustee, to account to them in equity.
    (Decided June 19, 1894.)
    Error to the Circuit Court of Cuyahoga county.
    The plaintiffs in error, also plaintiffs below, filed the following petition in the court of common pleas, against defendant in error, that is to say:
    “The plaintiffs say that William C. Johnson, deceased, was for many years a resident of Cleveland, Ohio, where he died on or about the -day of April, 1885, leaving no family save his widow, Mary Ann A. Johnson. That said decedent had brothers and sisters, all of whom died before his decease, as follows: Edward Johnson, who died many years ago, leaving the plaintiff, Wilford D. Johnson, his only child; Nancy Johnson Abbott, who died in November, 1866, leaving as her only children, the plaintiffs, JohnH. Abbott and Dudley H. Abbott and Lydia Lawrence, who died in March, 1884, leaving no children. That the said William C. Johnson duly executed and left his will as follows:
    “In the name of the benevolent Father of all, I, William C. Johnson, of Cleveland, Ohio, being of sound and disposing mind and memory, do make and publish this, my last will and testament: First — I direct that all my just debts, expenses of my last sickness and funeral expenses be first paid out of my estate. Second — I give and devise unto my beloved wife, Mary Ann A. Johnson, and her assigns all the remainder of my property, both real and personal, however the same may be known or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper, but, if at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters and their children, if deceased, the children to have the same amount the parent would be entitled to if living. Third — I hereby appoint my said wife Mary Ann A., executrix of this, my last will and testament, and desire that no inventory or appraisal of my estate may be made and that my said executrix may not be required to give bond.
    “In witness whereof I have hereunto set my hand and seal this 14th day of July, A. D. 1852.
    [seal.] William C. Johnson.
    “Signed and sealed in our presence and acknowledged to be his last will and testament, and signed by us in the presence of each other.
    “Samuel Williamson.
    “George B. Tibbits.
    “That said will was duly probated in the probate court of Cuyahoga county, Ohio, April 8, 1885.
    “The widow of said William C. Johnson, the said Mary Ann A. Johnson, duly elected to take under the said will of her late husband, and accepted the trusts created thereby, paid the debts of the estate, and in that behalf filed her settlement in the probate court, which settlement was duly approved. The said William C. Johnson, left an estate wholly unencumbered and free from, all claims except the expenses of his last sickness and burial, as near as plaintiffs can ascertain and describe as follows: A house and lot on Wood street in the city of Cleveland, Ohio, worth $10,000; two lots on Wilson avenue in said city, purchased from R. Arnold and known as lots 128 and 129, worth $3,250; a farm in Indiana; cash on deposit in The People’s Savings and Loan Association of Cleveland, Ohio, $660; cash on hand and on deposit, stocks, bonds, credits and chattel property, in all, in real and personal property, in amount and value not less than $50,000. All of which property and estate the said Mary Ann A. Johnson received, took possession of and had.and held, under and by virtue of the said will of her said husband and not otherwise.
    “That the said Mary Ann A. Johnson was of humble origin, of simple and plain habits, and moved in society of moderate demands,'was frugal and economical, and her manner of living, her personal tastes, wants and desires were fully gratified by the expenditure of a moderate sum of money; her expenditures in that behalf not exceeding the sum expended by her husband for the support of his family, to wit: The sum of fifty to seventy-five dollars per month for all proper purposes of her living and comfort for the period subsequent to her husband’s death up to the time of her decease.
    “That early in the year 1885 defendant, Henry H. Johnson, then known and giving his name as Henry H. Harbazal, was a stranger to William C. and Mary Ann A. Johnson, he had been in Cleveland but a short time, having come from a distant state, was engaged as a clerk in a store at a salary barely sufficient to afford him a support, and possessed of no means. Desiring a room and board he applied to Mrs. Johnson, and a few weeks before the death of William C. Johnson began boarding with the family. For a short time immediately succeeding the death of her husband, Mary Ann A. Johnson managed her own affairs, or was aided therein by neighbors and friends with whom she had been acquainted many years; but very soon after his first knowledge of the family, defendant began working himself into an intimate friendship with Mary Ann A. Johnson, and evincing an interest in her welfare, assiduously cultivated her confidence and trust, and having succeeded in thus gaining her confidence, in order to further gain and hold her confidence, for the purpose hereinafter set forth, he dropped the name of Harbazal, and assumed the name of Johnson, and having obtained full knowledge of the terms and provisions of the will of William C. Johnson, and the nature, extent and value of the estate left by him as aforesaid, and well knowing the frugal habits and limited requirements and desires of the said Mary Ann A. Johnson, he was fully possessed of the knowledge that at her death (which was liable to occur at any time, she being somewhat aged, infirm and sick) a large estate would be left unconsumed by her, he exerted his influence over her and induced her to transfer to him the full control and management of said estate, and with the intent and purpose of gaining possession of said estate and of keeping and holding’ the same as his own, and depriving plaintiffs thereof, fraudulently, unduly and designedly exerted his influence over the said Mary Ann A. Johnson, and by said means and for said purpose and without any consideration therefor, induced her to convey to him the said Wilson avenue lots, to transfer to him the balances of cash. on deposit in banks, to sell said Wood street property, which she did for the sum of $10,000, paid to her, in cash, and turn the entire proceeds over to him, and to assign, transfer and convey to him all other property and assets of the estate of the said William C. Johnson. That with funds thus obtained or with funds which were the proceeds of property sold by him, defendant erected a house on the Wilson avenue lots at an expense of not less than $7,000, to which house when it was completed he took thé said Mary Ann A, Johnson, then, and ever since the death of her husband, an aged, infirm and sick woman, and there kept her with him and fully under his control and influence until her death, which occurred on or about the - day of October, 1889. And by the same and like undue influences and in furtherance of his purpose aforesaid, he fraudulently and unduly influenced and induced the said Mary Ann A. Johnson to enter into agreements and contracts, the precise, nature of which is unknown to plaintiffs, and to make her will, bequeathing and devising to him every interest in property possessed by her or to which she was in any manner entitled, and to make him her executor, without bond or requirement to inventory or in any manner account for any of the estate received by him: All to the end and for the fraudulent purpose of placing all of the estate of William C. Johnson beyond the reach of plaintiffs, and making it appear as if the whole of said estate of William C. Johnson had been consumed and used by. the said Mary Ann A. Johnson, when in fact there had not been any diminution thereof, but on the contrary far less than the income, interests and profits thereof had been used or consumed by her, the said Mary Ann A. Johnson.
    
      “Plaintiffs further say that all liabilities of every kind and nature incurred by the said Mary Ann A. Johnson and the expenses of her last sickness and burial have been fully paid, and there are no debts against the estate of William C. Johnson or against the estate of Mary Ann A. Johnson, and there is nothing unsettled or undetermined but the payment or delivery to plaintiffs, who own and are entitled to the residue of the estate of William C. Johnson. That since defendant thus, as aforesaid, obtained title to and possession of the said estate of William C. Johnson, he has been engaged in numerous and extensive dealings in real estate and other financial transactions (the said estate composing and affording his sole capital); has traded and disposed of the Wilson avenue property, has used and speculated with, converted and invested, sold, transferred and reinvested all of said estate, and now has and holds title to the following property, as near as plaintiffs can ascertain or describe, as follows, to wit:”
    (Here follows a long .list of property, which for the sake of brevity is omitted.)
    “The plaintiffs aver and charge that all of the said described and designated properties, and all other property, money, credits, stocks, bonds and chattels now owned and held by said defendant are the property, the proceeds of property, interest, profits, accumulations, g-rowth and increase and results of the property of the said William C. Johnson, so as aforesaid received and held in trust by the said Mary Ann A. Johnson, and so as aforesaid fraudulently obtained and converted by the said Henry H. Johnson, defendant, and compose and are the properties, money, assets and estate left unconsumecl by the said Mary Ann A. Johnson at her death.
    “That said defendant has evaded accounting for said estate by the false statement that said Mary Ann A. Johnson died penniless — not leaving or having enough to pay her debts and the expenses of her funeral, and that she was cared for by and through the charity of said defendant, and said defendant has refused and still refuses to account for said estate and trust property, or any portion thereof, in any manner whatsoever.
    “The plaintiffs pray the court to take cognizance of said trust and trust property; that defendant be compelled to make full disclosure of any and all property, money and assets in any manner acquired or received by him from the estate of William C. Johnson or from Mary Ann A. Johnson, either by deed, gift, conveyance, transfer, will, or in whatsoever manner the same maj" have been acquired by him from said Mary Ann A. Johnson; that a full accounting thereof and all increase, profits, rents, interest and accumulation he had, and any and all proceeds, assets, estate and property, in whatsoever form' it may exist, in any manner growing out of the estate of William C. Johnson, be declared the property of plaintiffs, and defendant be compelled to convey the same to them, and in default of property now held by him as the proceeds and accumulations of said estate, judgment be rendered against him herein, and any and all estate he may possess, from whatsoever source acquired or received, be held and subjected to the payment thereof, and for all other relief, remedies, orders, decrees, proceedings and judgments justice may demand in the premises.”
    
      To this petition, defendant filed a general demurrer, which was sustained by the court of common pleas, and judg’ment rendered in his favor.
    On petition in error the circuit court affirmed the judgment of the common pleas, and, therefore, plaintiffs in error filed their petition in this court for the purpose of reversing the judgments of the, courts below.
    
      E. P. Hatfield, for plaintiffs in error.
    Every portion of the will must be made to have its just operation, unless there arises some invincible repugnance. Red. on Wills, 1 Ed., vol. 1, page 431; 13 N. Y., 273; 25 Ohio St., 477; 33 Ohio St., 213; 14 Ohio St., 251. And if possible some effect shall be given to each distinct provision of the will, rather than it should be annihilated. Red., vol. 1, page 432; 25 Ohio St., 477; 19 N. Y., 344: 35 Pa. St., 393; 4 Ohio St., 333-351. And the general intent overrides all technical construction. Red., vol. 1, page 433; 36 Miss., 564; 4 Ohio St., 333, 351; 15 Ohio St., 103-108; 32 Ohio St., 1. The old rule was that without words of inheritance, a life estate only passed. 20 Wheat. (U. S.), 204; 97 Mass., 415. Our statute changes the old rule and expressly provides that the intention of the testator is to be followed. Section 5970, Revised Statutes.
    In wills containing words, which beyond dispute would convey a fee simple estate, effect is given to subsequent clauses in the will, or limitations ascertained by a construction of the whole scheme of the will, to get at the intention of the testator, limiting the devise to one for life only, and that real and personal property pass alike. 15 Ohio, 559; 19 Ohio, 51; 14 Ohio St., 251; 19 Ohio St., 419; 21 Ohio St., 527; 19 Cin. Bull., 198; 90 Mo., 411; 116 Pa. St., 490; 104 U. S., 291; 80 Ky., 91; 93 U. S., 326; 100 Mass., 470; 6 Peters, 81; 68 Texas, 227; 43 N. J. Eq., 434; 47 N. Y., 512; 96 N. Y., 173; 64 N. Y., 278; 13 N. Y., 275.
    The will took effect the moment of his death. The widow took her interest in the estate at the same time, and by the same token plaintiff’s obtained theirs; the plaintiff’s interest was a vested remainder. 52 N. H., 267; 10 Ohio St., 101; 33 Ohio St., 128.
    No degree of uncertainty as to the remainder-man’s ever enjoying the estate will render the estate a contingent one, provided he has a present absolute right to have the estate the instant the prior estate shall determine. Washburn on Real Property, vol. 2, page 222.
    
      Louis H. Winch, for defendant in error.
    An absolute power of disposition annexed to a primary devise in fee is deemed conclusive of the existence in the devisee of an absolute estate. Van Horne v. Campbell, 100 N. Y., 287; Rona v. Meier, 47 Iowa, 707; Anin v. Vandaren, 1 McCart., 135; Stuart v. Berry, 72 Me., 145; Clark v. Hartwick Sem., 3 Ohio C. C., 152; Armstrong v. Kent, 1 Zab., 509; Flinn v. Davis, 18 Ala., 157; King v. King, 12 Ohio, 390; Pruden v. Pruden, 12 Ohio St., 255; Pickering v. Langdon, 22 Me., 413; Lambe v. Eames, 10 Eq. Cas., 274; Speairs v. Ligen, 59 Tex., 233; Howard v. Carusi, 109 U. S., 725.
    After the gift of an absolute estate- the limitation over of what may remain unconsumed, etc., is void for repugnancy, inconsistency and uncertainty. 1 Jarman on Wills, Sec. 363; Jones v. Bacon, 68 Me., 34; Bull v. Kingston (Eng.), 1 Mer., 314; Temp. Sugd., Lloyd & G., 270; Riddick v. Cahoun (Va.), 4 Rand., 547.
    Such a gift over is not good as a remainder, for a remainder cannot be limited upon a fee or on an estate of inheritance; it is not good as an ex-ecutory devise, because the limitation is inconsistent with the absolute estate or power of disposition expressly given or necessarily implied. 2 Kent’s Com., 270; Van Horne v. Campbell, 100 N. Y., 287.
    A court of equity will not construe such a devise as a trust, because the property to which it is to attach is not certain or definite; because a clear discretion and power to act, or not to act, is given; because the disposition to the first taker imports an absolute and uncontrollable ownership. 2 Story’s Eq. Juris., sec. 1070; Jeremy’s Eq. Jurisdic., 100; 2 Pomeroy Eq., sec. 1016.
    The rule that where there are inconsistent clauses, the latter shall prevail, does not apply here. Rona v. Meier, 47 Iowa, 707; Smith v. Bell (Tenn.), M. & Y., 302; Collins v. Collins, 40 Ohio St., 364.
    It is the disposition of the courts to adopt such a .construction as will give an estate of inheritance to the first donee. Ramsdell v. Ramsdell, 21 Me., 288; Jones v. Bacon, 68 Me., 34; Stuart v. Berry, 72 Me., 145; Collins v. Collins, 40 Ohio St., 364.
    The limitation is void as well of personal as of real property. Pickering v. Langdon, 22 Me., 413; Cole v. Cole, 79 Va., 252; Holmes v. Gordon, 8 De. G. M. & G., 152.
   Burket, J,

The facts set out in the petition, other than the will itself, cannot have' the effect to either enlarge or narrow the provisions of the will, but must be regarded, upon demurrer, as furnishing to the court the surroundings of the testator at the time of the making of the will, and thereby to enable'the court to view the situation, his property, and the objects of his bounty, through his eyes.

On part of plaintiffs in error, it is claimed that by this will Mrs. Johnson, the widow of William C. Johnson, took only a life estate in his property, with full power to use the same for her support as she might see fit, with remainder over of so much thereof as should not be consumed by her, to plaintiffs in error. The defendant in error claims, that by this will, Mrs. Johnson took an absolute estate in fee-simple of all the testator’s property, and that the remaifider over to plaintiffs in error, is a limitation engrafted upon a fee, and therefore void.

If the claim of plaintiffs in error is right, the judgment of the courts below is wrong. But if the defendant in error-is right in his claim, then the demurrer to the petition was properly sustained, and the judgment of the courts below is .right.

After providing for the payment of his debts,' the testator uses this language: “I give and devise unto my beloved wife, Mary Ann A. Johnson, and her assigns, all of the remainder of my property, both real and personal, however the same may be known, or wheresoever the same may be situate, with full power to bargain, sell, convey, exchange or dispose of the same as she may think proper.” That this part of the will standing-alone, would give to the widow a fee simple, can not be doubted; and if , what follows could be fairly construed as merely superadded words attempting to impose a limitation upon the fee thus devised, such limitation would, of course, be void, and the fee would remain.

The fact that after using’ words which in themselves would give a fee, full power to bargain, sell, convey, exchange or dispose of the estate as she may think proper is expressly given to her by the testator, at once creates a slight inference that something less than a fee was intended; because a fee of its own force carries with it, and confers upon her the power, without express words from him to that effect, to bargain, sell, exchange, or dispose of the property as she may think proper.

While the express addition of these powers to words giving a fee, would not have the effect in themselves to detroy the fee, yet when these express powers are taken in connection with what follows the part of the will above quoted, the intention of the testator to give to his wife only a life estate in his property becomes clear and manifest. After the quotation above given, the will proceeds as follows: “But, if, at the time of her decease, any of my said property shall remain unconsumed, my will is that the same be equally divided between my brothers and sisters and their children,” etc.

The plain intention of the testator as shown by the whole will, is, that the property is given to the widow to be by her used and consumed, and that while so using and consuming the same she is empowered to bargain, sell, convey, exchange, or dispose of the same as she may think proper, limited, however, in the exercise of such power, to the purpose for which the property is given to her, that is for her consumption. ■

The devise over to his brothers and sisters and their children, is of itself enough to show that the testator intended that his widow should use and consume the property only during her lifetime, and that he did not intend to empower her to dispose of the fee by gift during her life, nor by will at her death.

This is clearly the intention of the testator, when effect is given to the whole will, and the intention should always govern. Unless the will conflicts with some provision of law, all other rules of construction must yield to the rule that the intention of the testator, as gathered from the whole will, must control.

The ease of Baxter v. Bowyer, 19 Ohio St., 490, is almost exactly like the case at bar. In that case the will gave all the testator ’ s proper ty to his widow, and gave her expressly unlimited power to sell on such terms as she might think best, or use in any manner as she might deem proper, and deeds to purchasers to execute, acknowledge and deliver in fee simple. In a subsequent item of the will, he devised at her death the property then remaining, to the Presbytery of Cincinnati. This court. held, that under that will, the widow took only a life estate, and life support, with power of sale for the benefit of the estate.

The second syllabus in that case is as follows: “Where, by one clause in a will, property is devised or bequeathed, by words prima facie importing an absolute estate, and by a subsequent clause is given in remainder to another person, the first devisee or legatee takes only a life estate, and the limitation over is valid.” This syllabus correctly states the law, and the present case can not be distinguished therefrom, and we regard it as conclusive of the question here involved.

It is, therefore, clear that the widow took only a life estate, with remainder over to the brothers and sisters of the testator and their children, in ease of the decease of any of the brothers or sisters. The case of Posegate v. South, 46 O. S., 391, and the following cases, among many others cited by counsel for plaintiff in error, throw more or less light upon the question here involved. Huston v. Craighead, 23 Ohio St., 198; Pruden v. Pruden, 14 Ohio St., 251; Giles v. Little, 104 U. S., 291; Howe v. Fuller, 19 Ohio, 51; Stableton v. Elliston, 21 Ohio St., 527; Smith v. Bell, 6 Peters, 68; Brant v. Virginia Coal & Iron Co., 93 U. S., 336.

Having construed this will as giving to the widow only an estate for life, it follows that the brothers and sisters of the testator had a vested remainder in so much of the estate as should remain unconsumed by her at her death. The amount of this vested remainder was uncertain so long as the widow continued to live, and the whole of it was liable to be divested in case she should consume the whole of the estate for her support during her lifetime. Jeffers v. Lampson, 10 Ohio St., 101; Linton v. Laycock, 33 Ohio St., 128.

Perry on Trusts, in section 540, says that those in possession of a life estate under a legal title are implied or quasi trustees for the remaindermen.

We regard this rule as applicable here, and that while the widow was given the. legel title with full possession, and power to use, dispose of and consume the estate, for her life support, the duty rested upon her, in the nature of a trust, to have clue regard for the rights of those in remainder, as to the part of the estate not consumed by her for her support. That while she could use and enjoy the estate to its fullest extent for her support, and consume the whole of it if necessary, she could not go beyond what would be regarded as good faith toward the remaindermen. The testator having so amply provided for the support of his wife, evidently contemplated good faith on her part towards his brothers and sisters. He therefore gave her the right to consume, but not to recklessly squander or give away, the estate.

The widow holding this estate under this will, only for life, and as to the uneonsumed part thereof in trust for the remaindermen, such trust would be enforced as against one coming into possession of the estate with knowledge of the trust. Shibla v. Ely, 2 Halstead N. J. Ch., 181.

If the facts stated in the petition are true, and upon demurrer they are regarded as true, the defendant received and holds the property in the petition described, as trustee for plaintiffs in error, and as such trustee he is liable to account to them as prayed for in the petition.

Defendant in error relies upon that clause of the will, in which the widow is empowered to dispose of the property as she may think proper; and he says that she did dispose of it as she thought proper when she gave it to him; and that giving the property to him was consuming it by her. We do not so construe the will. She had but a life estate, with power of disposition for the benefit of herself and the estate, and with a view of fairly preserving so much of the estate as was not necessary for her support, for the use of those who were to succeed her in the remainder.

Again, it is arg’ued, that it, does not olecwly cvppem" by the will, that the testator intended to give the widow an estate less than a fee, and section 5970, of the Revised Statutes,'is cited. The answer to this is, that the intention of the testator is sufficiently clear, to induce us to be clearly of opinion, that the testator did not intend that his widow should bestow all his property upon the defendant, or any one else, and thereby cut out his own brothers and sisters and their children, and that if that had been his intention, he would at least have given his property to his widow absolutely in fee, and said nothing about a remainder over.

The court of common pleas erred in sustaining the demurrer and rendering judgment in favor of the defendant; and the circuit court erred in affirming the judgment of the common pleas. Both judgments are therefore reversed, and cause remanded to the court of common pleas, with instructions to overrule the demurrer, and for further proceedings according to law.

Judgment reversed.  