
    *Thomas Murdock and others v. Ratcliff, Cathcart, and Tiffany.
    A ¡ease of lands for ninety-nine years, renewable forever, is a chattel that, upon the owner’s decease, passes to his executor or administrator as any other chattel interest.
    This is a suit in chancery, reserved from, the county of Butler.
    The case shows that Andrew Murdock, deceased, devised to his wife, Mary Murdock, after his debts and one legacy were paid, “ all the residue of his estate, real and personal, to hold during the period of her natural life.” He died possessed of personal property, and of a leasehold interest of ninety-nine years, renewable forever, in a lot of land owned by the Miami University, leaving his wife and Ratcliff his executors. Mary Murdock, the widow and executrix, possessed the property after the death of her husband, and intermarried with Cathcart, who died. Cathcart has conveyed the leasehold interest to Tiffany. The plaintiffs being the brothers and sisters of Andrew Murdock, and his next of kin, •seek by this bill an account from Ratcliff of his settlement of the personal estate; and averring their title to, and possession of the leased lot, to which they say Cathcart and Tiffany pretend some right, they ask the court, under our statute, to quiet them in their possession against these claims.
    The answers of Cathcart and Tiffany admit the facts stated in the bill, and rely on the title to the land made by a conveyance from Cathcart to Tiffany.
    The defendant, Ratcliff, shows a due administration of all' the estate of the decedent and a settlement with the court. He denies ever intermeddling with the leasehold property.
    Woods, for plaintiff:
    The cause is submitted to the court upon the bill and answers. The complainants contend that Mary Murdock had by the will but a life estate in the personal property and land, and that after her decease the complainants, as heirs at law of said Andrew Murdock, are entitled to the estate, real and personal.
    It is presumed it will be admitted that the devise'in this case would pass nothing but a life estate, if the land in question is an estate of inheritance. The complainants contend that the land held under the Miami University is inheritable, and passes to the heirs as an estate of inheritance. ^Section 10 of the act to establish the Miami University,7 Ohio L. 184, provides that “the tenants or lessees shall enjoy and exercise all the rights and privileges which they would be entitled to enjoy and exercise did they hold the lands ,in fee simple, any law to the contrary notwithstanding.” Since the passage of this act, the lands held under the university have been considered as estates of inheritance; they are never sold or transferred by administrators; partition is made of them as of other real estate among the heirs of the deceased owner.
    If it be personal property, or only a chattel real, the law is settled that a life estate may be granted to one person and a devise over made to another; or if no devise be made of the residue of the interest, it will go to the representatives of the personal estate or to the heirs at law.
    This point was expressly decided by his honor, Judge Collett, in the ease of William Leigh et al. v. William Smith, in Butler common pleas, in a case which was warmly contested. The deceased, in that case, held lots in New York for a term of years, on ground rent, on which he had erected buildings. He devised all his money, bonds, property, and effects to his widow during her natural life. The widow sold the leases and collected the bonds, and with the money purchased land in the name of William Smith, her second husband.
    Judge Collett held the land in the hands of Smith after her decease liable to the heirs for the- money, with interest, from her decease. This case is referred to, not as a binding authority, but to show what the decision has been on a similar question. . See 1 Roberts on Wills, 431; 3 Merivale, 194; 5 Johns. Ch. 21, 342.
    It is too well settled to be now questioned that the intention of the testator must prevail. See 4 Kent, 519-522. Can it be doubted, in this ease, that the testator intended to only give a life estate? He expressly devises “to his wife, Mary Murdock, the residue of his estate, both real and personal (after the payment of debts and the legacy to Lucinda Lee), to have and to hold the same during the term of her natural life.” What can be more plain and direct than the expression by those words to give a life estate only ? The testator treated the farm in controversy as real property, and he expressly gives it, with his personal property, to his wife during 'her life. If he had intended to give her a greater interest than a life estate, the latter clause of the,sentence is not only unnecessary, but is utterly inconsistent with such an intention. Unless inhere is some binding authority or principle-which is imperative upon the court, it will not, it is confidently believed, set aside the will of the testator and wholly disregard • the intention which he has clearly expressed.
    Tange, for defendants:
    It is contended by the defendants, first, that the leasehold interest, held by Andrew Murdock at the time of his death, and -which is described in the bill of the -complainants, is not an eS: tate of inheritance. The heirs can not take by descent; such estates must go to the executors as personal chattels. See 6 Durnford & East, 289-292, 'where such an estate is devised to A. and the heir$ of his body with remainders over; A. may dispose of the whole and defeat the remainders by any conveyance during his lifetime; or he may do the same by his will alone. See the same case above noted. Mary Murdock, therefore, had the power, at any time during her widowhood, to dispose of, for her own proper use, the estate in question, and after her intermarriage with ■James Cathc-art, one of the defendants, the same power vested in him' as husband. In the chattels real of the wife, present and vested, an interest of the nature of the joint tenancy of the husband and wife is created by the marriage, and is a consequence of their legal unity, but subject to alienation by the husband in his lifetime. See Toller on Executors, 212; Plowd. 418; 2 Black. Com. 435. In case the wife die before the husband, all the chattels real of the wife, in which there exists a present actual and vested interest, become absolutely and entirely his own by survivorship. And that, too, without taking out letters of administration to her. Toller on Executors, 216; Coke upon Littleton, 300 ; Com. Dig., Baron and Feme, E. 2; Roll. Abr. 345.
    In the present case the executors of Andrew Murdock were chargeable with the payment of the debts and legacy of Lucinda Lee, which was to come out of the estate, after which the residue was given and devised to Mary Murdock, she being appointed executrix, and herein would be entitled to the absolute interest in the estate so devised. 4 Durn. & E. 89. Without this, however, I presume it would not be denied but that Mary Murdock was entitled, under the *will of her husband, to the absolute interest in the personal effects of the deceased, after the payment of the debts and legacy aforesaid. A leasehold interest has been uniformly decided to be personal property, although it may contain a .stipulation that it shall be renewable forever, 5 Ohio, 207; and it would be going too far to say that “a life estate may be granted to one person, and a devise over made to another; or if no devise be made of the residue of the interest, it will go to the representatives of the personal estate, or to the heirs at law.’ Where the use or usufruct only is devised, the power of the devisee, over the property devised, may be thereby restrained; but 'to disregard the distinction between a devise of the usufruct and a devise of the chattel itself, would seem, to my mind, preposterous. Be this as it may, however, the authorities referred to by the counsel for the complainants, in 5 Johnson, only serve to confirm me more strongly in the opinion that this action can not be sustained as against the present defendants; that should the complainants have a remedy at all, they should seek that remedy in .a different way.
    It is presumed that it will not be denied that in limiting a. devise as to estates clearly of inheritance, much slighter circumstances or less expressive language would be regarded as suf-^ ficient than would be required in those cases where the law is less favorable to a devise over, or to a descent of the residue of interest. The complainants, in order to show that the estate in question is inheritable, and passes to the heirs of an estate of inheritance, have cited section 10 of the act to establish the Miami University. 7 Ohio L. 184. Certainly it was never intended by the legislature, in using the language therein expressed, to alter the long-established law and usages upon that subject, by enlarging the quantity of interest, or changing the rule by which that interest should be acquired, held, or disposed of. It would be more reasonable to suppose that the language of the law referred to was intended rather to guard the civil rights of the occupant, by affording to him all the privileges as a citizen which the possessor of a freehold estate could enjoy; In this light can the case only be regarded.
   Judge Lanr

pronounced the opinion of the court:

The plaintiffs, claiming to be the heirs of Andrew Murdock, *inheriting his realty, pretend to be entitled, in that character, to an account and distribution of the personal estate; and while they ask the account against one defendant, they pray to be quieted in their possession against the others. The bill is objectionable for its multifariousness, as it attempts to combine in' the same suit claims against different classes of defendants, between whom subsists no privity.

But, passing over this objection, their rights to the personal-property have no existence upon this state of facts. The plaintiffs are the brothers and sisters of the decedent, and in the absence-of legitimate issue, inherit his real estate ; but as he died without children, the law (Stat. of Ohio, ch. 29, p. 236, sec. 28) gives the whole of the personalty to the wife. Whatever, then, be the deficiencies of the administrator, the plaintiffs have no interest in calling him to an account.

Their right to the college lot depends on the character of the estate which Andrew Murdock held in it; if it be not inheritable, their possession ought not to be protected. It was a lease upon an annual rent for ninety-nine years, renewable forever. We know that such interests are usually treated as fees simple by the holders; that in case of death, they are ordinarily transmitted to the heirs as realty, without being accounted for by the administrator ; that the law requires them to be appraised as real estate-in sales under execution (Stat., ch. 29, p. 103, see. 19); that such interests are liable to dower (29 Stat. 250, sec. 1), and, perhaps, it might be expedient for the legislature to make them inheritable; but no proposition has been better settled, from the earliest days of the common law, than that a lease, of whatever duration, is. but a chattel. In the absence of legislation, it only remains for us to follow the current of authorities. 3 Ohio, 465; 4 Ib. 207.

The only statute we find upon this subject is contained in the “ act to establish the Ohio University.” 6 Stat. of Ohio, 188, see. 10. Which declares that the tenants or lessees shall enjoy and exercise all the rights and privileges which “ they would be entitled to enjoy, did they hold their lands in fee simple;” a provision designed, in our opinion, to secure to the tenants civil and political privileges; not to change the quality of their estates.

Counsel have argued this ease upon another hypothesis; taking the lease to be a chattel, as the testator gave it to his *wife for her life only; what remains after her life is not disposed of by will, but reverts to the testator, to be distributed by his representatives. This doctrine, when applied to chattels real, seems, countenanced by the books. 6 Cruise, 287 ; 1 P. Vms. 666 ; 1 Salk. 278; But our view of the case renders a decision unnecessary; if the estate of the widow was for life only, and a reversion substituted in the executors of the testator, subject to distribution, she was the executor and the distributee, and entitled to such reversion, and her rights became absolute, since the estate for life and the reversion met in the same person.

Bill dismissed.  