
    No. 161
    BENNETT v. FLEMMING et al
    Ohio Supreme Court
    No. 17131.
    Decided July 5, 1922
    JUDGMENTS — (1) Vacation after term by infant arriving at age — (2) Reservation of rights of infants — (3) Limitation for error proceedings — Section 11603, 11631 and 12270 GC. — (3) Unborn persons bound by judgment — (4) Duty of Court . and guardian ad litem — (5) Independent action by infant for fraud — Doctrine of virtual representation — Infants as parties defendant.
    This opinion has appeared only in The Abstract.
    Attorneys — Abernethy & Simkins, Chas. H. May and Chas. J. Pretzman, for plaintiff in error; Burton Walters and John P. Phillips, for defendant in error.
   MARSHALL, C. J.:

Epitomized Opinion

James Bennett left by will certain real estate to his daughter, the defendant, for life, with remainder to the heirs of her body, and further providing that if Mrs. Flemming died without surviving issue, the real estate should pass, equally to other children, with remainder to their children. Mrs. Flemming, during her life time began an action under Section 11925 GC, to terminate the life estate, as provided therein, and alleging that there would be no substantial injury to the heirs in tail. The property was sold on decree without appraisement and Mrs. Flemming purchase it for $14,000.00. A trustee was appointed and has ever since held the fund for distribution to whoever in the end might be entitled thereto. Mrs. Flemming died, leaving no children, but, by will, left it to two of her friends. The plaintiff, Helen Bennett, was not born until after proceedings for the sale of the property were fully ended. A guardian ad litem for the numerous infant defendants was appointed in the proceeding for the sale. Helen Bennett, after arriving at full age, commenced an action in the same court, or-dred the sale, alleging fraud. This was done within one year after arriving at her majority. Held:

1. Paragraphs 5 an<4 8 of 11631, 11603 and 12270 GC. are cumulative, and the infant has a right to impeach a judgment for fraud after arriving at full age, and within one year thereafter, and may prosecute an original suit in the court where the decree complained of was entered.

2. Persons having a remote, contingent or expectant interest are bound by the judgment rendered concerning the property in which their interests are, although not made a party to the suit, if the holder of the first estate of the inheritance is a party.

3. An estate limited over to persons who are unborn are represented by the living owner of the first estate of inheritance and a decree is valid in a suit in which the first holder of the inheritance, a living person, is made a party. A judgment will conclude the rights of after bom remainderment.

4. Where infants are parties to a suit, it is the duty of the court and the guardian ad litem to ascertain the legal and equitable rights of the infant and to safeguard them fully.

5. Where infants are involved and the owner of the life of the estate bids in the property at a sale, made without appraisement and no innocent purchasers are involved on the petition for a full inauiry by an infant after arriving at a full age, filed within one year, the court should examine carefully into the former decision, and sale.  