
    Virgil J. Huey, Trustee of Lucy Jones, v. John D. Thomas, Jonathan Warner, et al.
    A testatrix devised a house and lot to her husband for life, upon condition that he, in a suitable, proper, and fatherly manner, provide for and take care of their daughter L., an imbecile, during their joint lives; and also conferred upon him a power to sell and convey the premises in fee simple, if, in his judgment, such sale became necessary for the comfortable support of either himself or L. She also devised, in case L. survived her father, and the property was unsold at the time of his death, the same premises to their son A., in fee simple, upon the same conditions which were imposed upon the devisee for life, provided A. would take upon himself the care and support of L. The husband relict died in June, 1852, without having sold the property, leaving L. surviving him, whereupon A. took upon himself the care and support of L., and did, in fact, care for and support her in a proper manner during their joint lives, to wit, until the time of his death, in March, 1857. In the meantime — to wit, in November, 1852 — A., by deed of general warranty, conveyed the premises to W., who, together with his assigns, has occupied the same ever since. Held, the estate in W. and those holding under him is absolute, and can not be charged with the maintenance of L.
    Reserved in the District Court of Mahoning county.
    This cause was appealed from the Court of Common Pleas, and resérved for decision here, upon a special finding of the facts by the District Court.
    1. That Cornelia Jones, the testatrix, died in March, A. d. 1851, leaving the will, a copy of which is attached to the petition and amended petition on file in this cause, and leaving the Youngstown property described in the will and petition, then worth $1,850; and also leaving the Binghampton property mentioned in said will, worth $1,200; and also leaving surviving her, her husband, Ira Jones ; her eldest son, Ira Jones; her second son, Albert Jones, who was then married and living at Indianapolis, Indiana, and in business; her eldest daughter, Lucy Jones, who was then idiotic and helpless ; and Cornelia Jones (now Huey), her youngest daughter, then about sixteen and a half years old. The husband, Lucy, and Cornelia lived upon the Youngstown property, until the death of Ira, the husband, and Lucy and Cornelia continued there after his death a few weeks, until they went with Albert, the son, to his home in Indiana, as hereinafter stated. The will of Cornelia Jones, the mother, was written by the Rev. C. A. Boardman, a man of scholarly attainments and familiar with the circumstances of testator’s family; and it was duly probated and admitted to record in the Probate Court of Mahoning county, Ohio, on the 15th of May, 1851.
    2. Ira Jones, the father, continued to occupy said Youngstown premises, as a home for himself and daughters, until his death, in June, 1852, and supported himself and daughters, and did not sell said property, but left the same at his death unsold, and left Lucy surviving him.
    3. Shortly after the death of the father, on being written to, the son, Albert E'. Jones, came from Indiana to the home of his sisters in Youngstown, and soon opened negotiations with the defendant, Jonathan Warner, for the sale of the Youngstown property, in dispute. Soon after this, and about three weeks after the decease of the father, the said Lucy and the said Cornelia went with him, the said Albert, to his home in Indianapolis, where they remained with him in his house, supported by him in part for a time.
    4. That Ira Jones, his brother, by deed dated July 15, 1852, released all interest in said Youngstown property to said Albert — said deed is recorded. That said Cornelia E. Jones, his said sister, by deed of July 30, 1852, while a minor, aged about seventeen and one-half years, and living with him at Indianapolis, executed to said Albert a deed, purporting to release to him all her interest in said Youngstown property, in which deed, reference is made to said will, and she recites therein that she is not in suitable circumstances, and is unwilling to accept the bequest, and take upon herself ’the care and support, and that she renounces said bequest and property, to be held by the said Albert, to him and his heirs, for the purposes and upon the conditions in said will set forth ; but that in fact the said Albert at the time of said execution of said deed promised to take, and did in fact take upon himself and undertake to support the said Lucy, according to the effect of the conditions in said will of said testator, and that the said undertaking on the part of said Albert E. in part constituted, and was designed by said Albert to constitute the inducement to the said Cornelia for the execution by her of said deed of release.
    5. That after said transactions on August 26, 1852, Albert E. Jones executed a warranty deed in fee simple, with the usual covenants in and by which he purported to convey said Youngstown property to defendant, Jonathan Warner, for the expressed consideration of $2,000, duly executed, acknowledged, and afterward, about November, 1852, delivered the same, and the same was recorded in Mahoning records.
    6. That in payment therefor defendant Warner, by deed of indenture, dated- November 16, 1852, conveyed to said Albert E. Jones the house and lot in Indianapolis, described in Warner’s answer, and as therein stated referring in said deed expressly to said will of .Cornelia Jones, and granting said house and lot to said Albert to have and to hold upon the same conditions, and for the same purposes, and under the same limitations and restrictions as he held the Youngstown property (the consideration thereof) under said will, all of which was referred to and recited in said deed, which deed was duly recorded in Indianapolis in the. proper record of deeds. A copy of said deed is filed in this cause with the other papers. Said Indiana property was worth $1,500, or upward.
    
      7. That during the year 1853, about October, said Albert conveyed said Indianapolis land by deed in fee simple to "W. H. C. Noble, for expressed consideration of $2,000, paid for in plank-road stock, which soon afterward, and before the same was or could be in any way available for the support of Lucy, became worthless; and said land by conveyance from said Noble, afterward, came to one Price, and others.
    8. That from about June, A. d. 1852, to March, 1857,' said, Albert E. Jones, with the assistance of said Cornelia, during his life, supported and cared for the said Lucy, and provided a home for her in his house and family; the principal portion of the time in his house.
    That during most of this period the said Cornelia made her home with said Albert without any bargain or arrangement therefor; without paying for her board, otherwise than by her labor in his family, and in said care and support of said Lucy ; and she while there performed services in the family, partly in taking said personal care of Lucy, but without any agreement to be paid therefor; and September 14, 1852, letters of guardianship for said Cornelia were issued by the Marion County Probate Court to said Albert E. Jones, and said Cornelia now claims that it was without her knowledge or consent.
    9. That said Albert E. Jones died at Chicago, while Lucy was living with him on March 14,1857, insolvent, and left no further means to support Lucy, nor any provision therefor, and thereafter his representatives failed to render such support; and about the time of his death, said Cornelia was married to said Virgil J. Huey, March 26, 1857, and thereafter to this time said Lucy has been cared for and supported by the said Cornelia and her husband, in their family, and the yearly worth and value of the care and support of said Lucy from the time of her father’s death in June, 1852, to the present time, was, on trial, at the suggestion of the court, reserved for full determination after otherwise settling the equities of the parties, but amounts to a considerable sum of money.
    
      10. That after the marriage of said Cornelia, her husband, said plaintiff, was appointed July 30, 1858, by the Marion County Probate Court, Indiana, trustee of said Lucy under said will, there being a vacancy, as expressed in the letters of appointment, and was also appointed trustee of said Lucy by the Probate Court of Mahoning county, Ohio, on -, the - day of -, 1868, after filing the first petition in this case. That soon after being appointed trustee for Lucy in Indiana, the plaintiff, as her trustee, prosecuted a suit in the Circuit Court of Marion county, Indiana, for the recovery of said Indianapolis land, so conveyed to Albert by Warner, and for rents thereof, against the said Price, and others, then holders and occupants, and about the year 1862 or 1863, said plaintifij as trustee of Lucy, recovered in said court a judgment for said property, after which the defendants in said judgment, Price and others, in a suit against Huey in the Supreme Court of Indiana, about the year 1865, obtained a judgment .against Huey, reversing said former judgment of the Circuit Court, and remanding said cause to said Circuit Court. Said Huey proceeded no further with said cause, but let it rest as the Supreme Court left it. The Supreme Court reported said cause, and their opinion in full on the reversal of said judgment, in the Indiana reports of decisions, volume 22, page 18, and forward, in the case of Price and others v. Huey, a copy of which report, decision, and opinion in said cause is attached to the pleadings in this cause and to the answer of plaintiff (Huey) made to the interrogatories put by the defendant Warner, appended to his answer, and which report and decisions are here referred to, as part of the facts found herein.
    11. That on the 17th day of November, A. D. 1862, defendant Warner, while in possession of the Youngstown property, conveyed by warranty deed, in fee simple, with usual covenants, for $700, a full consideration, to Nelson Crandall, a part of said property, on the east end thereof, as described in his answer; and about the same time, as stated in their several answers, he conveyed by like deeds in fee simple to the other defendants for full considerations other portions of said land, as stated and described in respective answers, all of which deeds were duly executed, acknowledged, and recorded, all of which purchases by defendants Crandall, Niblock, and Thomas were made and deeds received in good faith for a full and valuable consideration, without any notice of any defect or anything wrong in any respect, unless or except as the terms of the will, and the records aforesaid gave them notice of defect or want of power or authority to sell. Said purchasers have ever since held their respective parts under their deeds and have made some improvements thereon; and while Warner held said land he made some improvements thereon, and neither Warner from the time of completing his purchase, nor his said grantees from the time of their purchase till the beginning of this suit, had any notice of any defect or wrong, otherwise than aforesaid, and no claim for said land was made during that period.
    12. That at the time of the making of said will the Youngstown property was in poor repair, and the refits thereof, subject to taxes and repairs, were worth yearly about $100 per year; but that since then, owing to the general rise of property in the city of Youngstown, the said Youngstown property is worth about $3,500, independent of improvements.
    F. G. Servis, for plaintiff:
    1. Whatever were the rights of Lucy Jones, they were derived from the will of her mother, and have never been extinguished.
    2. That the devise was given, first, to Ira Jones, the husband, and was the gift of a power and not the gift of an estate, and was never executed by him.
    3. The devise to Cornelia was the gift of an estate; and “upon the same terms” as the gift to the husband, which was that she take care of and support Lucy; and that the will imposed this condition upon her, not merely that she would undertake to support her, but that she actually would support her, not only as long as she lived, but as long as Lucy lived; and it is not a condition precedent, but a condition subsequent, and not the gift of a “ power.” And the words of the devise, referring to the other ulterior devises, viz., “ the same conditions as above imposed,” mean that they shall so support her, that is, charge for charge, or mutatis mutandis. And the estate was thus given to Cornelia, charged with a burden, that of the support of Lucy, and could not otherwise be conveyed.
    4. Whatever might have been the rights of Albert in the premises, the finding of the court below that neither he nor his representatives have ever provided for the support of Lucy, estops all persons claiming under him, from any claim prejudicial to such support.
    ' 5. It is inconsistent Avith any kind of human foresight, that the testatrix meant that when the property once vested, it should be free of the charge she intended, for that would be to place the same Avhere it could be squandered ; but she meant that they should be able and uniting, that is, have the means to support and actually support the imbecile.
    6. The statute of limitations does not run, as against a trust estate.
    
      B. F. Hoffman, for Warner and Crandall:
    1. That the estate, in fee-simple, vested as soon as accepted, and the charge undertaken and entered upon; and carried with it a right and power to sell.
    2. That it was not a conditional fee-simple,” or “fee-simple on condition,” attached to the land.
    3. That the words, “ same conditions, etc.,” were merely expressive of what he might do as to the means placed in his hands.
    4. That his “taking upon himself” the charge, was the consideration of the fee-simple bequest.
    5. That it was not intended or contemplated that the land should be kept intact as long as Lucy might live, using nothing but rent, and not using the whole land and avails, if necessary.
    
      6. If not intended as an untrammeled fee-simple; still, at all events, it was given as a means of supporting Lucy, all of it if necessary, with ample power expressly given to sell it for that purpose.
    7. If there was any doubt as to the right and power to sell, it has been construed, settled, and acquiesced in by the parties, during fifteen years’ action, without complaint, so that they should be estopped by their conduct “ in pais ” from now gainsaying it.
    8. That the words of the will, prima facie and affirmatively, grant a fee-simple in name, so as to be notice of that kind of estate to all purchasers of ordinary intelligence; and the force and scope of a fee-simple is also defined by the testatrix; and a sale power, and authority to use all the avails, are so mentioned and given as to afford reasonable, affirmative notice to all ordinary minds that sale power existed; and the words of the will do not, in any shape, afford any intelligent notice to the contrary; and that, therefore, the present owners are purchasers without notice of any record defect. And purchasing, after ten years’ title in Warner, acquiesced in by former holders, all of whom had been for that time without the state, they would have no ground or reason, in fact, even to suspect that anything could be wrong, and would be confirmed in the idea of perfect safety in dealing.
   McIlvaine, J.

Cornelia Jones died testate in March, 1851. In her last will and testament, executed on the 6th of February preceding, she made provision for her daughter Lucy, who was idiotic and helpless, as follows:

“1. I give and bequeath to my husband, Ira Jones, the house and lot in Youngstown now occupied by us, being the same lot conveyed to me by my mother, Lucy Edwards, late of Youngstown, deceased, by deed bearing date September 15, 1840, for and during the natural life of the said Ira Jones, upon the condition that the said Ira Jones, in a suitable and proper and fatherly manner, provide for and take care of our unfortunate daughter, Lucy Jones, during their joint lives.. And if in the judgment of the said Ira Jones, at any time after my decease, it shall be necessary to the comfortable support of either the said Ira Jones, or Lucy Jones, that the aforesaid house and lot be sold, then I do hereby authorize and empower him, the said Ira Jones, to sell and convey the same in fee-simple, the same as he would do were the said premises bequeathed to him in fee-simple by me; and in that case, my will is that the avails of the said property sold be applied- in part, or in whole, as the circumstances of the said Ira and Lucy, or of either of them, may require, by the said Ira Jones to his and her comfortable support, according to his best judgment.
“In ease the said Lucy Jones shall survive her father, the said Ira Jones, and the premises above described be then unsold at the time of his death, then I give and bequeath to our daughter, Cornelia Jones, in fee-simple, the above-described premises upon the same conditions as above imposed upon my husband, the said Ira Jones; provided, that the said Cornelia shall then be in suitable circumstances, and is willing to take upon her the charge of the said Lucy. But should the said Cornelia then not be in suitable circumstances, or be unwilling to take the care and support of the said Lucy upon herself, then—
“ I give and bequeath the aforesaid premises unto our son, Albert Jones, upon the same conditions as aforesaid. And should he not take upon him the charge aforesaid, then—
“I give and bequeath these premises to our son, Ira Jones, upon the same conditions; and if all these persons named shall fail to accept the bequest, and take upon them the charge of the said Lucy as aforesaid, then—
“ I ordain that the said property shall be applied under the instruction of the proper legal authority to the comfortable maintenance and support of the said Lucy Jones.
“ In case that the said Lucy shall survive her father, the said Ira Jones, and at the time of his death the property aforesaid has been sold, then—
“I will and ordain that such portion of the avails of the said property as shall remain unexpended, shall .be offered to the aforesaid Cornelia Jones, to be faithfully applied by her to the comfortable maintenance and support of the said Lucy Jones; and if the said Cornelia be not in suitable circumstances to take this charge, or decline to accept the property on these conditions, then—
“ I ordain that the same tender be to our son, Albert Jones; and if he decline its acceptance and charge, then—
“ That it be offered on the same terms to our son, Ira Jones; and if all decline the property and charge, then I ordain that the proper legal authority take charge of the property, and faithfully apply all of it to the comfortable support and maintenance of our said daughter, Lucy Jones.”

The only other provision in the will was a devise, in trust, for the use of her only other daughter, Cornelia, an infant, about sixteen years of age.

The testatrix had no children other than the four named in the will, all of whom survived her. Albert, at the date of the will, resided in the State óf Indiana, where he was established in business.

The husband relict of the testatrix accepted the devise in his favor, and occupied the house and lot as a home for himself and daughter from the death of his wife until his own death in June, 1852. During this period he provided for and took care of Lucy, without exercising the'power of sale conferred upon him by the will. All the children survived him. After his death, Cornelia declined to take upon herself the care and support of Lucy, and thereupon Albert, in pursuance of his mother’s will, accepted the bequest, and took upon himself the charge of Lucy, and continued to care for and support her until March, 1857, at which time he died, insolvent, arid without having made any provision for the future support of Lucy.

In the meanwhile, however — to wit, on the 16th of November, 1852 — Albert conveyed the house and lot in Youngstown, by deed of general warranty, to the defendant, Jonathan Warner, in exchange for other real estate situate in the State of Indiana. Afterward and before the commencement of this action, this property, in parcels, was conveyed to the other defendants herein. From November, 1852, to the commencement of the action, Warner and those holding under him have enjoyed the use of the property, and are now called upon to account to the plaintiff, as trustee of Lucy, for the rents and profits of the estate.

If the title of Albert to this property, at the date of hie conveyance to Warner, was absolute, in law and equity, or if it became so at any subsequent time, then the estate of Warner, under his deed of general warranty, is also absolute, and neither he nor those holding under him can be called upon to account. ,

What, then, is the character of the estate which Albert took under the will ?

The devise to him was “ in fee simple,” upon the same conditions that had been imposed upon his father as devisee for life : and those conditions were, that he, in a suitable, proper, and fatherly manner, would provide for and take care of Lucy during their joint lives. These were conditions subsequent, and Albert’s estate was subject to be divested upon his failure to perform them, or, at least, it was charged with the support of Lucy, to the extent named in the conditions. How, then, stands this case ? According to the special' findings of fact, Albert, after the death of his father, did provide for and take care of Lucy, at his own home and as a member of his own family as long as he lived. No complaint is made as to the manner in which she was cared for during this period. It is true, that during this time Cornelia was also a member of Albert's family, and assisted in caring for her unfortunate sister without compensation; but this fact does not tend to show that Albert was derelict in the discharge of the duties imposed upon him by the will. Now, if the conditions upon which Albert held his estate were identical with those imposed upon his father as devisee for life, it is quite certain that they have been fully performed, and therefore the estate in Albert’s grantee and his assigns has become absolute, both in law and equity.

The devise to Albert, however, contained a condition not imposed upon his father. Upon the happening of the contingencies named — to wit, the death of the father without a sale of the property having been made, Lucy surviving, and Cornelia declining to take upon herself the charge of Lucy — the property was devised to Albert upon the same conditions which had been imposed upon his father, provided he would take upon himself the care and support of Lucy. Here was a personal assumption of the charge of Lucy required of Albert as a condition precedent, a condition to be performed before the devise vested at all.

The object of the testatrix was not to set apart a fund out of which the mere physical wants of Lucy might be supplied, but to secure for her a sister’s or a brother’s care; and to this end she proposed to reward the sister or-brother who would take upon her or himself the personal charge of their unfortunate sister, by a devise of this property, subject only to the conditions which had been imposed upon her husband as devisee for life.

After tendering this property to Cornelia, Albert, and Ira in the order named, and upon the same conditions both subsequent and precedent, the will provides: “And if all these persons named shall fail to accept the bequest, and take upon them the charge of said Lucy as aforesaid, I ordain that the said property shall be applied under the instructions of the proper legal authority to the comfortable maintenance and support of the said Lucy Jones.” "When the sister and brothers should refuse to take upon themselves the care of the unfortunate Lucy, then, and not till then, did the testatrix declare a trust in this property in favor of Lucy.

It is not necessary to inquire as to the extent of this undertaking either in a legal or moral sense, which was intended to be assumed by Albert before the estate could vest in him, for the reason, as I understand the will, it was the undertaking itself, and not the performance of it, that constituted this condition; hence, having taken upon himself the charge of Lucy, at the time, and in the manner contemplated by the will, the estate vested in Albert, subject to be defeated only in the event that he should fail to-perform the conditions named in the devise to his father, to wit, to provide for and take care of Lucy in a proper manner during their joint lives.

The foregoing view of the case, in my opinion, entitles the defendants to a judgment in their favor.

If it be conceded, however, that the property devised to-Albert was intended by the testatrix to be charged with the maintenance of Lucy beyond the letter of the conditions named, that an equitable right or interest in the property was created in her favor for her support and maintenance during life, and that such right is paramount to the estate-given therein to Albert (and some of my brethren think that such is the true construction of the will), still, we all agree that, as against these defendants, the title must beheld to be discharged from the equities created in favor- of Lucy, if, under the will, a power to sell the property was conferred, upon Albert.

Upon a fair construction of the whole will, we think an absolute power to sell was conferred upon him, which he was authorized to exercise at any time after the devise to him took effect.

1. The property was devised to him in fee-simple in terms; and it is quite clear that the testatrix understood those terms to confer an absolute power of sale. In conferring the power to sell upon her husband, which unquestionably was intended to be a power to grant an indefeasible and unincumbered title, she uses the following words: “ to sell and convey the same in fee simple, the same he would do were the premises bequeathed to him in fee-simple by me.”

2. Before the happening of the contingencies upon which the devise to Albert could vest, an authority to sell was. conferred upon the husband ; and after the happening of those contingencies, if the several children, in the order-named, should refuse to take upon themselves the charge of Lucy, a sale was authorized under the instruction of the proper legal authority: so that it does not appear that the testatrix intended or desired that, in any event, the premises should be preserved from sale.

3. It can scarcely be doubted that the testatrix, by requiring Albert “to take upon himself the care and support of Lucy,” intended to secure from him a promise to contribute his personal means and property to her maintenance to the extent they might be needed; and certainly she intended that the whole of this property should be applied to that purpose, if the wants of Lucy should make such application necessary.

4. And lastly, when we look to the circumstances as they •existed at the time the will was made, viz., the residence of Albert in the State of Indiana; the situation of the property in this state; the dilapidated condition of the property; that its yearly rental value did not exceed one hundred dollars, and the insufficiency of the rents to meet the probable expense of supporting Lucy, we have no reasonable doubt that the testatrix intended (and that the will fairly expresses such intent) to invest Albert with power to sell the property, at his discretion, fully discharged of all liens or •equities that might be asserted in Lucy’s favor, so long as "he property remained unsold.

jPetition dismissed at the costs of plaintiff, and cause remanded for execution.  