
    The Lessee of Theodore Miles v. Jonathan Fisher, Nehemiah Allen, and Paul P. Condit.
    Where an estate is devised to certain trustees and their successors, the limitation over to the successors is void.
    In a limitation, by will, to A., B., and C., and to the survivors, to hold as joint tenants, and not as tenants in common upon trusts, the grantees take at law an estate for life, with a remainder for life during the life of the survivors and survivor, leaving the remainder in fee to descend to the heir. During the life of such trustee, or the survivors or survivor, the heir can not maintain ejectment.
    The estate of joint tenancy does not exist in Ohio.
    This is an action of ejectment on an agreed state of facts, from the county of Cuyahoga.
    
      The plaintiff claims as one of the heirs at law of Daniel Miles.
    The defendants set up title in themselves under the will of Daniel Miles.
    In 1825, the testator devised his estate, real and personal, to 2] three of his friends, and to the survivors or survivor, as *joint tenants, and not as tenants in common, in trust, and for the following uses:
    I. To pay debts.
    II. To pay certain pecuniary legacies to his mother, brothers, and sisters.
    III. To pay an annuity of five dollars to the library society of Newburg.
    IV. To stand seized.of certain in-lot for a school-house.
    V. To pay the net income of all the remainder of his estate, for one hundred years, after 1825, to the education of ten persons, who should be:
    1. Of his name.
    2. Nearest of kin.
    3. For whom application shall be made by residents of Ohio.
    VI. After the year 1925, the net income is to be applied:
    • 1. One-half to the church of the most numerous denomination in Newburg, who believe in future rewards and punishments.
    2. One-half to the common schools of Newburg.
    The judges of the common pleas of Cuyahoga are appointed visitors, and umpires to decide all questions arising as to the objects of the testator’s bounty.
    To provide a succession of trustees, he directs that when any •of them die, or remove from Cuyahoga county, the judges of the common pleas shall appoint a new'trustee or trustees, to whom the estate shall be transmitted by some valid conveyance, to be Feld on the same trusts.
    Three questions are raised:
    1. Whether the succession of trustees, in the manner prescribed •by the will, js n.ot an effort to create a perpetuity, in a manner not warranted by law.
    -3] 2. Whether, the objects of the testator’s bounty being Members of his own family, the devise is not a mere gift of a private mature, and not a charity, in the eye of the law.
    
      3. Whether, if it be a charitable bequest, it is not so indefinite in its terms and limitations, that it can not be executed, and is therefore void.
    These points were fully argued by Wade, Welles, and Hamline, for the plaintiff, and by Payne and Wilson, for the defendants; but as the opinion of the court rests on other grounds, the discussion of counsel is omitted.
   Lane, C. J.

Much industry and learning have been devoted to the investigation of the various questions arising in this case, and the time probably will come, which will render their examination necessary. But in an action of ejectment, regarding legal titles only, it will not be required to enter upon this widely extended field. For the charity may subsist, and cling to the land, whether the legal title be held by the trustees or the heir; or the charity may be void and unsustainable, and the beneficial trust inure to the heir, while the trustees retain a good estate at law. The questions therefore raised in argument lie behind that which is presented in the case. We are now only called to consider if the freehold passed by the will, leaving all questions relating to the trusts to be decided in the only proper tribunal.

If an estate be conveyed to a grantee, .capable of taking, upon trusts, the question of the validity of the trusts will not be entertained in a court of law. The land passes. If the trusts can be supported, they will be enforced in chancery, at the suit of .the cestui que trust; if the trusts are void, they may be declared void by the same court, and the beneficial use of the estate reclaimed by the heir.

In this case the land was devised to Fisher, Shaw, and Allen— a lawful conveyance, with lawful parties and apt words. It transmitted a title of some nature, upon trusts.

The extent of the estate thus created is next to be considered. The testator did not intend to give the trustees an *estate in [4 fee, and the statute of 1834 does not operate. 32 Ohio L. 41. He gives the land to them and their successors. This limitation over to their successors is void; for the law does not permit the transmission of an estate to successors, except in a grant to a corporation. The estate in the trustees is for life only, and there is no provision for the continuance of the title at law beyond them; after their death, it descended to his heirs, charged or not charged with the trust, as may be hereafter determined.

Two of the trustees are living and one is deceased. The two hold two-thirds of the estate, by virtue of the plain words of the will, and it remains to be considered, whether the heir may, in this suit, recover the estate held by the deceased trustee.

The testator’s words are to “Fisher, Allen, and Shaw,” to the survivors or survivor, to hold as joint tenants, and not as “tenants in common.” It is urged that where an estate is limited in joint tenancy, by express words, the common law incident of survivorship attaches, and that in this case, on the death of Shaw, his share is held by his co-tenants, as long as they hold their own. But it has long since been adjudicated that the estate of joint tenancy, as distinguished from a tenancy in common, has no existence in Ohio. 2 Ohio, 306. Consequently this doctrine of survivorship can not be used to protect this part of the title.

Yet the testator intended to give the land to the survivor of the trustees, and every conveyance should be construed to carry the intention of the maker into effect, if made consonant with the principles and forms of law. Laying out of view the doctrine of survivorship, resulting from joint tenancy, an incident of the estate depending upon the law, and not on the act of the party, we find the testator, by express words, limiting the estate to the three trustees and the survivor. The estate well passes, by these words, to the survivor, for life. The remainder in fee is not dis-5] posed of. The ^freehold is given to each trustee for life, and the remainder of the estate for life is given to the other trustees, and the remainder in fee descends to the heir. Such is the legal effect of the donation; and during the lives of the original trustees, or that of the survivor, the heir is precluded from recovering the possession of the estate, by virtue of his legal title.

Without any reference, therefore, to the trusts which attend the estate, the defendants are entitled to judgment.

Judgment for the defendants.  