
    Foureman et al., Appellees, v. Foureman et al., Appellants, et al., Appellees.
    (No. 647
    Decided November 15, 1946.)
    
      Mr. T. A. Billingsley and Mr. Floyd D. Smith, for appellees Roy B. Foureman and Alma B. Foureman. Mr. Walter F. Rhynard, for appellants.
    
      Mr. Qeorge W. Porter, for appellee The Peoples Savings Bank of G-reenville, Ohio.
   Wiseman, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Darke county, Ohio, wherein the court construed the will of Lazarus Foureman, deceased, and issued a decree for the partition of certain lands known as the “home farm.” Under the will, the widow, Elizabeth B. Foureman, was given a life estate with a remainder to the children share and share alike. The will further provided in item 5 that “should any child or children become dissatisfied with this my will and cause any trouble in the settlement of my said estate, or go into court for the purpose of contesting this will or to partition said real estate, or otherwise interfere with the proper administration of my said estate, then it is my desire that such child or children shall forfeit to the estate the undivided one-third part of his, her, or their shares on distribution; and that the portions so forfeited to my said estate shall pass to and vest absolutely in my child or children satisfied with my said will, share and share alike. ’ ’

Testator died on March 25, 1925, leaving surviving him his widow and three children, Roy B. Foureman, Alma B. Foureman and Howard L. Foureman, all of whom are living adults. The will was admitted to probate by the Probate Court of Darke county, Ohio, on May 9, 1925. No executor was appointed and no fur-ther steps, were taken in the administration of the estate. On December 16, 1938, Howard L. Foureman and his wife, Carrie Foureman, together ' with the widow, Elizabeth B. Foureman, executed and delivered to the defendant, The Peoples Savings Bank óf Green-ville, Ohio, a certain real estate mortgage conveying to that bank their interest in the farm. The mortgage was given to secure a note on which there was due $3,580. On March 11, 1944, the widow by deed conveyed to the.plaintiffs, Roy B.-Foureman and Alma B. Foureman, all her right, title and interest in the farm.

In the original petition the plaintiffs prayed for an accoimti'ng and an order of partition. In their amended petition for their first canse of action, plaintiffs seek the construction of the will of Lazarus Foureman, and in their second cause of action pray that if the court should find that the restrictions in the will against partitioning of the real estate are invalid and ineffective, in that event, the plaintiffs be granted a decree of partition. To the amended petition the defendants Howard L. Foureman and Carrie B. Foureman, appellants herein, filed their third amended answer and cross-petition in which they set up numerous defenses. They invoked the forfeiture clause contained in the will and asked the court to construe the will and declare that plaintiffs had forfeited their interest in the real estate.

The court held that the widow took a life estate which was transferable; that the three children took an absolute fee simple estate in remainder, subject to the life estate of the widow; that the restraint placed by testator upon the right of the children to partition the “home farm” was for the protection of the widow so long as she retained her life estate, and was not intended to be a continuing and permanent restraint upon the right of the children to partition; and that the provision in item 5 in the will which attempts to prevent any of the children from partitioning the real estate is null and void and does not operate to restrict the rights of the remaindermen. The court found further that the interest of Elizabeth B. Foureman, Howard L. Foureman and Carrie Foureman in the real estate is subject to the mortgage lien in favor of The Peoples Savings Bank of Greenville, Ohio; that plaintiffs are entitled to have partition of the real estate.

For their assignments of error, the appellants claim that the judgment of the court is contrary to law; that the judgment is not sustained by sufficient evidence; that the court erred in the exclusion and omission of testimony; that the court erred in admitting evidence over their objection; that the judgment is against the manifest weight of the evidence; that the court erred in permitting plaintiffs to amend their petition from a suit in partition to a suit to construe a will; that the court erred in entertaining a suit to construe a will under Section 10504-66, General Code, as the action was not instituted by them as fiduciaries; that the court erred in entertaining a suit under Section 12102-2, General Code (Uniform Declaratory Judgments Act), as all questions involved were moot; that the court erred in denying the defendants a trial on their answer and cross-petition; that the defendants Howard B. Foureman and Carrie B. Foureman were not given an opportunity to interpose a defense; and all other questions on the face of the record.

On the issues drawn by the pleadings, the principal question for the court to determine was whether the restrictive clause in the will which attempted to deprive a remainderman from bringing a partition suit was valid. Whether the court finds in determining the intention of the testator, which is the cardinal rule to follow in all will construction suits, that the restrictive clause was for the protection of the widow and ceased to operate when' she conveyed her interest, or that the provision was repugnant to the devise of a fee simple estate, the result would be the same as to the rights of the plaintiffs to partition. An unlimited right of disposition is the essence of an estate in fee simple, and the law of Ohio is fairly well settled that any attempt to restrict the right of the holder to alienate his interest is null and void. See 31 Ohio Jurisprudence, 330; 16 Ohio Jurisprudence, 391; 28 Ruling Case Law, 316; Anderson v. Cary, 36 Ohio St., 506, 38 Am. Rep., 602; Baker v. Alexander, 24 Ohio App., 117, 156 N. E., 223; Toledo Loan Co. v. Larkin, 1 C. C. (N. S.), 473, 15 C. D., 209; Minor v. Shippley, 21 Ohio App., 236, 152 N. E., 768; and Persinger v. Britton, 10 Ohio App., 164. See, also, 2 Page on Wills (2 Ed.), 1787; 3 Tiffany on Real Property (2 Ed.), 2307; and 5 Thompson on Real Property, Section 2716.

We approve the judgment of the trial court that the restrictive clause in the will was for the protection of the widow’s interest and ceased to operate after she conveyed her interest. That disposes of the principal issue in the case.

We hold that the trial court did not abuse its discretion in permitting the plaintiffs to-amend their petition to include a cause of action in which they asked the court to construe the will. The journal entry recites that the right to amend was granted in open court in the presence of counsel. Counsel did not reserve objection to the court order. Furthermore, the defendants Howard L. Foureman and Carrie B. Foureman joined issue by filing thereto their amended answer and cross-petition. In their cross-petition they asked the court to construe the will and thus they pray for the same relief as the plaintiffs ask in their amended petition. The contention is made that the plaintiffs could not maintain a will construction suit as they did not bring such suit as a fiduciary of an estate as provided under Section 10504-66, General Code. This action was brought under the provisions of Sections 12102-2 and 12102-4, General Code, which are a part of the Uniform Declaratory Judgments Act and provide that any person interested in the estate or trust may bring such action.

We have examined the bill of exceptions and cannot find where the court committed prejudicial error either in the admission or exclusion of evidence. Furthermore, we are of the opinion that the judgment is sustained by sufficient evidence, and that the judgment is not against the manifest weight of the evidence. The record does not show where the defendants Howard L. Foureman and Carrie B. Foureman were denied the right to interpose a defense or to introduce any evidence pertinent to the issue.

Finding no error in the record prejudicial to the appellants, the judgment of the trial court is affirmed.

Judgment affirmed.

Hornbeck, P. J., concurs.

Miller, J., not participating.  