
    No. 653
    BUTLER v. HANNENBURG
    Ohio Appeals, 1st Dist., Hamilton Co.
    No. 2633.
    Decided June 22, 1925
    941. PRACTICE & PROCEDURE — Court cannot pass on petition to construe will where only the item to be construed is contained in the petition; and there is no bill of exceptions filed in the Court of Appeals.
    Attorneys — Paul V. Connolly for Butler; Bettinger, Schmitt & Kreis, for Hannenburg; all of Cincinnati.
   HAMILTON, J.

Ida Hannenburg, executrix of the estate of Hannah Butler, deceased, filed a petition in the Hamilton Common Pleas asking the court to construe item 2 of the will of Hannah Butler’s deceased husband. The husband owned the property in fee and provided that it was to go to his wife during her lifetime then to Edward, the son, should he survive his mother, if not she could dispose of the land as she saw fit.

It was alleged that the son pre-deceased his mother and that he died intestate without issue; that Hannenburg was given power to sell the property by Hannah Butler; but that the purchaser did not complete the sale, claiming ^hat there was a cloud on the title. It was asked that the court declare that Hannah Butler had vested in her a fee-simple estate.

The widow of Edward Butler claimed that she was entitled to all the real estate mentioned. She prosecuted error from the finding of the lower court in favor of Hannenburg and the Court of Appeals held:

1. The court is unable to see how it can make a finding in the record submitted, there being no bill of exceptions filed. The only thing the court has before it is item 2 of the will; and the answer of Butler throws no light on the subject.
2. If item 2 was not effected by any other part of the will, Hannah Butler under this item, could convey a good title as her power of alienation is absolute and it 'would not be necessary to ascertain what estate she had.
3. On the state of the record, the question sought to be raised in the error proceeding cannot be passed upon.

'Petition In error dismissed.  