
    Mary Harkness v. George C. Corning.
    1. A testator devised certain real estate to Ms granddaughter S. and her issue — habendum, to S. “ and her issue and their heirs.” If S- should die- , before the age of twenty-one years, leaving no issue then living, there was-a devise over of the premises to two daughters of the testator for their lives, and upon their decease to their issue respectively. S. had no. issue, but died after she became twenty-one years of age. Held, 1. That issue, as used in connection with the devise to S., was a word of limitation, and not of purchase, and that S. took an estate in fee tail; 2. That although S. died without issue, yet as her death did not occur until after she became twenty-one years of age, the devise over to the daughters never took effect.
    2. The statute to restrict the entailment of real estate (S- & C. 550) does not change the nature of the estate in the first donee in tail from an inheritable estate to an estate for life merely. The object of the statute is-to restrict the entailment to the immediate issue of such donee, and, on the determination of his interest in the estate, and of such rights as the law annexed to it while held by him, to enlarge the estate tail in the hands of such issue into an absolute estate in fee simple.
    3. One of the incidents of an estate in fee tail, at common law, is the right of the surviving husband to an estate by curtesy, with which the statute above referred to does not interfere, and to which, in this state, the husband is entitled, whether there is issue born during the coverture or not.
    4. In an action for the recovery of real property, a disclaimer by the defendant, in his answer, of any possession of the property in question, or of any right therein, otherwise than as tenant of a third party named, whose title he sets forth, constitutes no defense, unless such title is a good one; and where the parties px'oceed to final judgment without bringing in such party, the omission affords no grounds for reversing the judgment.
    
      Error to the Court of Common Pleas of Hamilton county. Reserved in the District Court.
    The defendant in error, George C. Corning, filed his petition in the Court of Common Pleas of Hamilton county to recover the possession of the real estate devised by Anthony Harkness, deceased, to Sarah Harkness, by the seventh item of his will. The petition avers that the testator was seized of the premises at the time of his death, and that his will had been duly admitted to probate and record.
    The item of the will in question is as follows:
    “Seventh. To my granddaughter, Sarah Harkness, daughter of Charles Harkness, and her issue, I give and devise my mansion-house and the grounds at Glendale, being the lots Nos. 76 and 77, in block No. 10, subject to the life éstate thereof, which I have given and devised to my wife, to have and to hold the same to said Sarah Harkness and her issue and their heirs, subject to the life estate of my wife therein. Also, the sum of twenty thousand dollars, to be paid to my said granddaughter when she becomes twenty-one years of age. If my said granddaughter, Sarah, should die before the age of twenty-one years, leaving no issue then living, I give and devise the property, both real and personal, so intended for her, to my two daughters, Jane Gano and Maria King, for their lives, equally share and share alike, and upon their decease to their issue respectively.”
    The petition also avers that said Mary Harkness, widow of the said Anthony Harkness, failed and refused to appear in the Probate Court of Hamilton county, and elect to take under said will, and thereupon the said Mary Harkness afterward, and pursuant to law, was paid and has received her distributive share of said estate, and had assigned to her dower in the real estate of her late husband, as if he had died intestate.
    That at the date of said will and of the testator’s decease, the said Sarah Harkness was and had always been unmarried; that she attained the age of twenty-one years on the 20th day of October, 1865, and intermarried with the plaintiff on the 7th day of February, 1866 ; that she died on the 10th day of October, 1868, without ever having had issue, but leaving her last will and testament, which had been duly admitted to probate and record, whereby she bequeathed and devised all her property, real and personal, to the plaintiff, her surviving husband.
    The petition avers that, by reason of the premises, the plaintiff became seized of a legal estate in and .entitled to the immediate possession of said real estate; that the defendant is in possession thereof, and unlawfully detains it from him; and he asks judgment against her for the recovery of possession.
    The defendant, in her answer, denies that any right or title to the property was devised to the plaintiff by the last will of Sarah, his wife.
    She also alleges that said Jane Gano survived the said Sarah, and is still living; that Maria King died before Sarah, but left the children named, who are still living.
    She also alleges that the said Jane Gano and the said ■children of Maria King claim that, by the terms and effect of the seventh item of the will, said Jane, upon the death •of said Sarah, became entitled to the undivided half of said real estate for life, and the said children of Maria King to the other undivided half in fee simple. She disclaims possession of the premises, otherwise than as the tenant of the said Jane Gano and the children of Maria King.
    The plaintiff demurred to the answer on the ground that ■the facts stated did not constitute a defense. The demurrer was sustained, and judgment rendered against the ■defendant for the recovery of the possession of the premises, and for costs.
    The case was taken on error to the District Court, where it was reserved for decision by this court.
    Since the case came into this court, Mary Harkness, the .plaintiff' in error, has died, and the action has been revived.
    
      
      Hoadly, Johnson § Colston, and King, Thompson § Long-worth, attorneys for plaintiffs in error :
    Sarah, took an estate for her life. The words employed are not the technical and appropriate words for the creation of an estate tail. The legal expression to create an estate tail, would be to “ Sarah Harkness and the heirs of her body.” But such language is not found in this devise.
    It is clear that the word “ issue,” where used in this devise, means the same. In the last clause it certainly means children, because there the thought is of the “ issue” that Sarah might have, or rather not have, by the time she reached the age of twenty-one. It would be preposterous to speak of Sarah’s dying under twenty-one, leaving no grandchildren. If “issue” means “children” in the second instance, we conclude it means “ children” in the first.
    The words “ heir, heirs, children, or issue,” are frequently regarded as convertible terms, and may be construed, taking into consideration the whole will, to mean one or the other, as the proper construction may require. King v. Beck, 15 Ohio, 559; Bowers v. Porter, 4 Pick. 209; Cosby v. Ex’rs of David Lee, 2 Disney, 460; Williams v. Coston, 1 Strob. Eq. 130.
    The devise, then, was to Sarah and her children and their heirs. There is not a word or syllable to prolong her interest beyond her life. She took only a life estate. Ward v. Sutton, 5 Ired. Eq. 421.
    It is perfectly plain that the testator intended that the property should go to Sarah, and after that to her children, if any, and if not, to Jane Gano and Maria King. Intention controls the letter. Hawkins on Wills, 4.
    The proposition that Sarah took a fee tail as they existed in England, is totally inconsistent with our statute. 1 S. & C. 550; King v. Beck, 15 Ohio, 562.
    Curtesy does not attach to an estate tail in Ohio. Pollock v. Speidel, 17 Ohio St. 447; 1 Scribner on Dower, ch. 13, sec. 4, p. 269; Kent’s Com. 15, note c.
    
    Our statute (1 S. & C. 550) is a literal and verbatim copy of the statute of Connecticut. And it has been expressly decided in that State, that curtesy does not attach, to an estate tail. Wells and wife v. Olcott, 1 Kirby, 118; 1 Root, 79; Allen v. Bunce, 1 Root, 96; Borden v. Kingsbury, 2 Root, 39.
    When the Connecticut statute was adopted in Ohio, we adopted with it the construction it had received in Connecticut. Brice v. Myers, 5 Ohio, 21; Hamilton v. Hempsted, 3 Day, 339.
    
      Rufus King and S. J. Thompson, attorneys for executors of Mary Harkness:
    I. Whatever Coming’s rights may be, as between him and the others who are now brought in as parties, as against Mrs. Harkness and her executors, the judgment in the Court of Common Pleas is erroneous.
    By the second defense in her answer, she disclaimed any possession or right in the property, 'otherwise than as the tenant of third parties, whose names and claim of title were set forth. Coming’s demurrer to this defense should not have been sustained. The court was bound, under sections 35 and 40 of the code, and the facts thus confessed by the demurrer, to have required the claimants so disclosed to be made parties. This was not done, although they were necessary parties to a complete determination and settlement of the question involved. Code, sec. 25.
    II. But if Mrs. Harkness were properly held, notwithstanding her disclaimer, to sustain this action alone, Corning shows no right. Co. Lit. 29 b; 4 Kent’s Com. 27.
    III. The question, then, is reduced to this, whether the issue of Mrs. Harkness would, upon her death, have taken this property as her heirs.
    The habendum to “ Sarah Harkness and her issue and their heirs,” did not alter or affect her estate. It merely expressed that which the statute, of itself, imposed- upon the preceding gift — a fee simple in the issue.
    Though, in England, Mr. Coming’s claim to an estate by the curtesy might be valid, yet the estate tail in Ohio, by force of the statute, 1 S. & C. 550, has been transmuted into an estate for life in the first donee, and a fee simple in his or her issue; and the issue take the fee by purchase, and not by inheritance. Pollock v. Speidel, 17 Ohio St. 439; 4 Kent’s Com. 15, note; 1 Scribner on Dower, 269, sec. 4; 2 Jarman on Wills, 232, Perkins’ note.
    IY. It follows that the issue of the “ first ” donee takes an estate which the donee never had, and consequently he can not inherit, but must take it by purchase. Moreover, it is absolute, “and therefore it can not, with due attention to this word, be fettered or limited with any of the conditions or incidents of an estate tail. King v. Beck, 15 Ohio, 559; Sumner v. Partridge, 2 Atkyns, 47; Barker v. Barker, 2 Simons, 249; Janney v. Spriggs, 7 Gill, 197.
    Sarah Harkness did not take an estate in fee, as intimated by counsel for the defendant. Pruden v. Pruden, 14 Ohio St. 351.
    
      Matthews, Bamsey Matthews, attorneys for defendant in error:
    Whether the estate limited to Jane' Gano and Maria King took effect or not, can not determine the question of the quality of the estate given to Sarah Harkness.
    In devises, of real estate, “ issue ” is prima facie a word of limitation, and equivalent to “ heirs of the body.” Boed. Dodson v. Grew, Wilm. 272; Roddy v. Fitzgerald, 6 H. L. C. 823; Woodhouse v. Herrick, 1 K. & J. 352. Thus a devise to A and his issue, or to A for life and after his decease to his issue, vests in A an estate tail. Roddy v. Fitzgerald, 6 H. L. C. 823.
    It is, however, true, as observed in Hawkins’ Const, of Wills, 191, that a less demonstrative context will suffice, in certain cases, to convert “ issue ” into a word of purchase than to altei’t he meaning of the technical words “ heirs of the body,” as shown by a rule, deduced from the cases cited, stated 'as follows:
    “ Where there is a devise to one for life, with remainder to his issue, as tenants in common, with a limitation to the heirs general of the issue, the issue take as purchasers in fee.” Per Parke, J., Slater v. Dangerfield, 15 M. & W. 273; Lees v. Mosley, 1 Y. & C. 589; Greenwood v. Rothwell, 5 Man. & Gr. 628; 6 Beav. 492.
    But all these circumstances must concur: An express limitation to the first taker-for life; words of distribution, as that they are to take share and share alike, etc., and words of limitation, inconsistent with an estate tail in the ancestor, annexed to the devise to the issue.
    Here not one of these circumstances is to be found. The grant to Sarah "Harkness is not, in terms, for her life ; the limitation to her issue is not as tenants in common; and the words of limitation, “ and their heirs,” are not annexed to the devise to the issue alone, but may as well be referred to include the first taker herself, and are not only not inconsistent with an estate tail in her, but exactly describe the course of descent of an estate tail in this state, as modified by our statute to restrict the entailment of estates.
    Even had the word in this devise been “ children ” instead of “ issue,” it would still have been an estate tail in Sarah Harkness, by a rule as old as the decision in Wild’s case, 6 Co. 17, which Mr. Hawkins thus states (Const. of Wills, 198):
    A devise of real estate to A and his children, A having no children at the time of the devise, vests in A an estate tail; “ children ” being construed as a word of limitation. Wild’s case, 6 Rep. 17; Webb v. Byng, 2 K. & J. 613; Earl of Tyrone v. Marquis of Waterford, 1 DeG. F. & J. 613; Nightingale v. Burrell, 15 Pick. 104; Wild’s case, 6 Rep. 16; Wood v. Baron, 1 East, 259; Davie v. Stevens, 1 Doug. 321; 6 Cruise Dig. 280, lit. 38, c. 12, sec. 27.
    The superadded words of limitation, to the estate given to Sarah Harkness and her issue, viz., “ to have and to hold the same to said Sarah Harkness and her issue and their heirs,” can not be construed as indicating the intention that the children of Sarah Harkness should take as purchasers, so as to cut down her estate to an estate for life. 
      Buxton v. Uxbridge, 10 Met. 87; Wright v. Thayer, 1 Gray, 284; Hall v. Thayer, 5 Gray, 523.
    Upon no ground can the superadded words have the effect of diminishing the estate of Sarah Harkness. If they have any effect, it must be to enlarge it. And taken in connection with other parts of the clause, supporting or requiring that intention, they must be held to do so. 1 Washburn on Real Property, 74, sec. 27; Perkins, sec. 168; Co. Lit. 21 a; Altam’s case, 8 Rep. 154 b; Corbin v. Healy, 20 Pick. 515; Wright v. Thayer, 1 Gray, 287.
    It is admitted that by the law of England — the common law — -curtésy and dower are incidents of estates tail. And they are none the less so when the estate becomes vested in the last person, who, by the form of the gift, could claim as tenant in tail, as in the case of one who holds as tenant in tail after possibility of issue extinct. Paine’s case, 8 Co. 34 b; 1 Scribner’s Law of Dower, 274; 1 Washburn on Real Property, 131, 135; Buckworth v. Thirlkill, 3 Bos. & Pul. 652; Goodenough v. Goodenough, 3 Preston Abstracts, 372; Moody v. King, 2 Bing, 447; Buchanan v. Sheffer, 2 Yates, 374; Taliaferro v. Burwell, 4 Call, 321; Hay v. Mayer, 8 Watts, 202; Grant v. Townshend, 2 Hill, 554; Milledge v. Lamar, 5 Desauss. 637; Northcut v. Whipp, 12 B. Mon. 65; Kennedy v. Kennedy, 5 Dutch. 185; Evans v. Evans, 9 Penn. St. 190. Contra: Weller v. Weller, 28 Barb. 588; Hatfield v. Sneden, 42 Barb. 622.
    But it is claimed by counsel for plaintiffs in error that by virtue of the statute to restrict the entailment of estates (1 S. & C. 550), the first donee in tail holds only a life estate, and not an estate of inheritance; that this has been expressly so decided by this court in the case of Pollock v. Speidel, 17 Ohio St. 439, and that, consequently, no tenancy by the curtesy can arise upon it.
    We claim that the case of Pollock v. Speidel, on the other hand, decides the point just the other way.
    The real meaning of the opinion clearly is not that the donee in tail, by virtue of the statute, takes an estate for life, with contingent remainder to unborn children, vesting on the birth of any, subject to open and let in all those after born; but whether the deed of the first donee in tail conveyed any estate as against the heirs of his body.
    The Connecticut cases cited by counsel for plaintiff in error do not apply as claimed.
   White, J.

The only question necessarily involved in the decision of this case is whether George C. Corning, the plaintiff below, as surviving husband of his deceased wife, Sarah, is invested with the right to the possession of the real estate in controversy.

It is unnecessary to consider, for the determination of this question, in whom the ultimate fee to the premises may be vested; and as parties interested in that question are not before us, we express no opinion upon it.

The right of Corning, the plaintiff below, depends on the nature of the estate which Sarah, his wife, took as devisee under the seventh item of her grandfather’s will.

The estate for life which was intended to be created for the testator’s widow, having failed, the provision in reference to it may be left out of view.

By the seventh item of his will, the testator devised the real estate in controversy to his granddaughter, Sarah, and her issue, “ to have and to hold the same to the said Sarah and her issue and their heirs.” There is also a provision which declares that, if Sarah should die before the age of twenty-one years, leaving no issue then living, he gives and devises the property so intended for her to his two daughters, Jane Gano and Maria King, for their lives, equally share and share alike, and, upon their decease, to their issue respectively.

The claim of the plaintiff below is that, under this provision of the will, his wife became invested with an estate in fee tail; and that, as surviving husband, he is entitled, under the statute of this state, to an estate by curtesy.

This claim is resisted on several grounds.

1. It is contended that, under the operation of the will, independent of the effect of the act to restrain the entailment of real estate, Sarah took only an estate for life.

2. That, on her death, without leaving issue, the devise over took effect, and that the whole estate became vested in Jane Gano and Maria King and their issue.

3. If the above propositions can not be sustained, and if, under the will, an estate tail would, at common law, vest in Sarah, it is contended that the effect of the act to restrain entailment is to reduce the estate of the first donee in tail to a life estate merely; and, consequently, that neither curtesy nor dower can attach to such an estate, under the statute.

We can not assent to either of these propositions.

In regard to the first, it is claimed that issue, as used in connection with the devise to Sarah, is a word of purchase and not of limitation; and that the effect of the devise is to vest in Sarah an estate for life, with remainder to her children. Without undertaking to consider what the effect would be, had the word children been used instead of issue, we will merely remark that we see no ground for making the substitution. The fact that, in the natural course of events, only one class of issue — namely, children — could have been intended in prescribing the contingency upon which the devise over to Jane Gano and Maria King was to take effect, does not show that the testator, in making the devise to Sarah and her issue generally, intended the word issue to be restricted to that class.

The authorities are clear and decisive to the point, that issue, as here used, is a word of limitation; and that, where no statute interferes, the effect of a devise like the one in question is to vest in the devisee an estate1 in fee tail. Hawkins on Wills, 189; 2 Jarm. *328, *329; Nightingale v. Burrell, 15 Pick. 104; Buxton v. Inhabitants of Uxbridge, 10 Met. 87; Wheatland v. Dodge, Ib. 502; Wight v. Thayer, 1 Gray, 284; Hall v. Thayer, 5 Gray, 523.

In support of the second proposition, it is claimed that in the clause providing for the contingency upon which the devise over is to take effect, the word “ or ” should he inserted, so as to make the devise over take effect on the contingency of Sarah’s dying without issue, although after she attained twenty-one years of age.

The effect of this construction would be to disinherit the issue of Sarah, in case she had married and died before arriving at the prescribed age, leaving issue. The case of Sayward v. Sayward, 7 Greenleaf, 210, cited in support of the position, and the cases therein cited, are to the contrary. That case is to the effect, that if “ or,” which it is claimed should be inserted, had been used in the will, the intention in favor of the issue would require “ and ” to be substituted.

The remaining question is as to the effect of the act to restrict the entailment of real estate. 1 S. & C. 550.

The act provides as follows: “That from and after the taking effect of this act, no estate in fee simple, fee tail, or any lesser estate, in lands or tenements, lying within this state, shall be given or granted, by deed or will, to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making such deed or will; and that all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in tail.”

We do not think it was intended by this statute to change the nature of the estate of the first donee in tail from an inheritable estate to an estate for life merely. The evil against which the statute is directed is the perpetuating of the estate in the issue of the first donee. To accomplish this object to the extent that was deemed necessary, it was intended by the statute to restrict the entailment to the immediate issue of such donee, and on the determination of his interest in the estate, and of such rights as the law annexed to it while held by him, to enlarge the estate tail in the hands of such issue into an absolute estate in fee simple.

The act in question was copied, substantially, from the statute of Connecticut, passed in 1784. Before its adoption in this state, it is claimed to have received a settled construction in that state, to the effect that, under it, the donee takes a life estate only, and that his issue take by purchase and not by inheritance.

We have examined the cases referred to in the argument, as well as others decided in that state, and have been led to a different conclusion.

In Hamilton v. Hempsted, 3 Day, 335, the jury were instructed that the devisee took an estate tail, and that the estate became a fee simple in his issue.

In Whiting v. Whiting, 4 Conn. 179, the tenant in tail general of an estate, for a valuable consideration, conveyed the same by a fee-simple deed, with the usual covenants, and it was held that the grantee acquired a base fee, determinable on the death of the tenant in tail, by the entry of the issue in tail; but until such determination, the estate had all the incidents of a fee simple.

In Dart v. Dart, 7 Conn. 250, it was held that the issue of the first donee in tail, during the life of such donee, had no right which he could transfer. The court say : “Such issue is only an heir apparent or presumptive. His title is the bare possibility, or mere chance, of becoming eventually the heir in tail; for the maxim is ‘nemo est hceres viventis.’ And it is a well-settled rule, that a mere possibility can not be released or conveyed.’’

In the following cases, also, it was held that the devisees took estates tail: Hudson v. Wadsworth, 8 Conn. 349; Williams v. McCall, 12 Ib. 328; Comstock v. Comstock, 23 Ib. 349.

In the last case, Ellsworth, J\, in delivering the opinion of the court, says: “ The estate of the defendant, under his father’s will, is an estate tail, and nothing more; his lineal heirs only being entitled to take under and through him, and he never having any greater than a life estate to convey.”

By the last expression that the devisee had no greater than a life estate to convey, is meant, not that he took a life estate by the devise, but that the only estate he could convey determined with his life. If he took only a life estate, such estate would determine on his death, and his heirs could not take under and through him.

A somewhat similar expression is used by the learned judge delivering the opinion of this court in Pollock et al. v. Speidel, 17 Ohio St. 447. The controversy in that case was between the issue of the donee and the defendant, claiming under a conveyance from the donee, and the question was as to the quantity of interest conveyed. The judge said the “ statute recognizes the first donee in tail as holding an estate for life only, as tenant in tail.” The idea intended to be expressed was that the donee, holding only as tenant in tail, could not convey an estate that would endure beyond his own life.

To give to the expression the meaning claimed by plaintiff's counsel, that the donee took a mere life estate, would render the opinion not only inconsistent with itself, but with the fourth proposition of the syllabus. Further along in the opinion (pp. 448, 449), it is said “ that the words ‘heirs of his body,’ used in the conveyance to James Pollock, are words of limitation, not of purchase, and that his issue take not as purchasers, but by descent.”

It is true that Mr. Scribner, in his work on dower (vol. 1, pp. 269,270), in classifyingthe statutes of the various states, relative to estates in fee tail, makes the observation that in-Ohio the first donee in tail takes an estate for life. The same remark is made in regard to Connecticut. To the same effect is a note to Kent’s Commentaries. 4 Kent, 15, note c. No authorities are cited in support of the position, nor is there any discussion or critical examination of the question.

In regard to Whiting v. Whiting, supra, cited in the section referred to of Mr. Scribner’s work, as deciding that the widow of the tenant in tail is not entitled to dower where the estate has been conveyed by the husband, it may be remarked that in Connecticut the widow is dowable only of estates of which her husband died seized. 1 Root, 50; 4 Kent’s Com. 41.

Dower was denied in that case, not on .the ground that the husband had not an inheritable estate in the premises during coverture, but because he was not seized thereof at the time of his death.

Among the incidents attaching at common law to an estate in fee tail, are the rights to curtesy and dower. With these rights the statute above referred to does not interfere. And, in this state, by statute, the surviving husband is entitled to an estate by curtesy, whether there be issue horn during the coverture or not. 1 S. & C. 504, sec. 17.

It is contended that the judgment should be reversed, because Jane Gano and the children of Maria King, under whom the defendant below, as their tenant, was in possession, were not made parties. The answer denies the right of the plaintiffs, and also contains a disclaimer of possession of the property, or of any right therein, otherwise than as tenant of said parties, and sets up their title as a defense. Unless the title so set up is a good one, it constitutes no defense. The parties under whom she claimed would, doubtless, have been proper parties, but they were not necessary parties to the determination of the controversy between the plaintiff and the defendant. Not being parties to the suit, they would not be bound by the judgment, unless they chose to become bound. The legal effect of the judgment is to transfer the possession from the defendant to the plaintiff; and, as the parties in the court below proceeded to final judgment without bringing in the parties referred to, the omission affords no ground for reversing the judgment.

Judgment affirmed, and entry to be made in accordance with the agreement of the parties of record.

Day, C. J., McIlvaine, Welch, and Rex, JJ., concurring.  