
    No. 685
    WEBB v. BILES, et.
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 3087.
    Decided May 2, 1927.
    1271. WILLS AND LEGACIES —1237. Vested rights — 1. Where will directs trustee to pay mortgage indebtedness out of income from estate and, when such indebtedness is paid, to distribute remainder of estate, interest of distributee vests as of day indebtedness would be paid.
    Error to Common Pleas.
    Judgment reversed.
    First Publication of this Opinion.
   CUSHING, J.

Elizabeth Voight Webb, in an action against Hannah M.- Biles, et, prayed for a construction of the will of John Webb, Jr., and that the court instruct the trustee as to her duty in managing and distributing the estate.

The trial court sustained a demurrer to the petition, dismissed the action, and entered judgment for costs against the plaintiff. This action is prosecuted to reverse that judgment.

The will and codicil were pleaded. John Webb, Jr., executed a will on October 8, 1902, added a codicil on June 8, 1904, and died August 27, 1904. The will was probated. Mary Webb, testator’s widow, died in 1914. John Benjamin Webb, a son, died without issue October 29, 1923, and left a will in wMch he devised all his property, real and personal, to Elizabeth Voight Webb, the plaintiff. At that time the trustee under the will of John Webb, Jr., retained a large amount of personal and real property.

Hannah M. Biles, after qualifying as executrix and trustee, collected the income from the estate of John Webb, Jr., and annually distributed it to John B. Webb, Harry Storrs Webb, Hannah M. Biles, and Lydia P. Sims, one-fifth each; to Ruth Neiding and Marie Matthews, children of Mary Rebecca Sorin, one-tenth each.

After the death of John Benjamin Webb, the trustee divided the income into four parts, paid it to the distributees other than plaintiff, and refused to pay any part of it to her.

Title to all the property vested in the trustee on the death of John Webb, Jr. Aside from managing the estate, paying expenses incident thereto, the trustee was charged -with four duties:—

Attorneys — David Davis, Herbert G. Jacobson and Barnes, McKenna & Halsted for Webb; Pogue, Hoffheimer & Pogue for Biles, et; all of Cincinnati.

1. To provide for the support, comfort convenience of Mary Webb, the widow, and to use the remainder of the net income to pay off mortgage indebtedness on the real estate.

2. At the death of Mary Webb, to deed specific real estate described in Item 13 of the will, to John B. Webb, Mary Rebecca Sorin, Henry S. Webb, Lydia P. Sims and Hannah Mary Biles. But in case of the death of any of his children, previous to the death of his wife, the share of each shall be deeded to the issue of such child, and if there is no such issue, said real estate shall become a part of the residuary estate.

3. To pay the mortgage indebtedness and all claims against his property out of the income from the real estate.

4. To sell the property, pay the legacies, and distribute the estate.

The will directed the trustee to manage arid control the estate un,til the net income thereof should be sufficient to pay off the mortgage indebtedness, then said trustees were directed to pay said indebtedness and thereafter immediately convey all the real estates and money that may remain in their hands to the children, and the issue of any desceased child share and share alike per stirpes.

The interest of the distributees was contingent and did not vest until the period of distribution. Barr v. Denny, 79 OS. 358.

The next question is, has the date for distribution, arrived; can it be ascertained; and if so, when was it, or when will it be?

The trustee was not vested with discretion, other than the amount of money that could be paid for the support, comfort, and convenience of Mary Webb. The period of discretion ended in 1914, on the day Mary Webb died. Prom the only record before us, the trustee at no time used the net income from the estate to pay off the mortgages. On the contrary, the trustee without discretion, right or authority, distributed the income to the persons that, if living or their issue, if there be such, would be entitled to receive the same, when the period of distribution arrived.

The mortgage indebtedness, at the date of the death of John Webb, Jr., should be ascertained. The amount of interest paid on those .mortgages from that date to the date of the death of John Benjamin Webb should be computed.

The amounts paid annually by the trustees to the distributees should be taken, and, added thereto, should be interest at the same rate that was paid on the mortgages, provided that rate is the same or less than the legal rate of interest, and these annual payments, with interest, should be considered as having been paid on the mortgages. The date of distribution would be the date when the total of these annual payments, plus interest, equaled the amount of the mortgage indebtedness. The date, so determined, would fix the period of distribution, and the vesting of the title in the distributees.

If the date so determined is prior to October 29, 1923, the day on which John Benj. Webb died, the plaintiff would be entitled to the distributive share of her deceased husband. If the date on which the mortgage would have andbeen paid is subsequent to October 29, 1923, she cannot have any share of the estate of John Webb, Jr. The judgment of the Common Pleas will be reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

(Hamilton, PJ., and Buchwalter, J., concur.)

Hamilton, PJ.,

(concuring)—

I concur in the conclusion that the trial court erred in sustaining the demurrer to the petition. However, I incline to the view that the legacies in question vested either at the death of the testator, or upon the death of the surviving widow, but reserve my conclusions as to the time of vesting until all of the controlling questions can be brought before the Court.  