
    Raymond et al. v. Butts.
    
      A contract by owner of real estate — To convey realty to second party — On fulfillment of conditions — In case of death of second party — Latter's estate to receive pro rata interest — In amount of fulfillment relative to whole value of land — Contract confers enforceable interest in second party — Latter may devise said interest, when.
    
    1. A contract executed and delivered by the owner 'of real estate and binding himself, his heirs and legal representatives, to convey the real estate to the second party upon his fulfillment of conditions named, and providing that if the party of the second part shall die before completion of said agreement, then and in that case his estate shall have such equitable interest in the lands as the amount of his fulfillment is to the whole value of the land but in no event less than $3,000, confers upon the party of the second part a substantial interest which is enforceable in equity and which is property which may be devised.
    2. Where the party who has such equitable interest dies before complete performance of such contract on his part, leaving a will in which he devises such interest, together with other real estate which he owns in fee simple, upon condition that his devisees shall complete his said contract, and the other party to the contract consents-to and ratifies the devise, and in the same instrument quit-claims and releases all of his right and interest to the devisees, the title invested in the latter is a title by way of devise and not of purchase, and will descend as ancestral property.
    (No. 11691
    Decided March 28, 1911.)
    Error to the Circuit Court of Portage county;
    This action was originally instituted by Sophronia Raymond, now deceased, claiming to' be the sole owner of in fee simple by survivorship and in actual possession thereof, under the last will and testament of her brother, Leonard L. Raymond,deceased, of a certain described tract of land, one hundred and thirty-eight acres, and also of a certain described' tract of land, thirty-three acres; and alleging that the defendant, Charles Butts, claims to be the owner in fee simple of the one undivided half of said lands; and praying that she may be adjudged to be the owner in fee simple of said lands freed ■ from all claims of an estate or interest therein of the defendant, and for all proper relief.
    On the death of Sophronia Raymond, the present plaintiffs as her only heirs and devisees were substituted as plaintiffs.
    The defendant denied that plaintiff has any title in the one hundred and thirty-eight acre tract under the will of Leonard L. Raymond, deceased, and alleges that he is seized in fee simple as son and heir at law of H. H. Butts, deceased, of one undivided half of said tract and is entitled to the immediate possession thereof; that said H. H. Butts inherited said lands from his wife, Sophia (Raymond) Butts, who died without issue and intestate; that he is entitled to one undivided half of the thirty-three acre tract, subject to a life estate of Sophronia Raymond, the plaintiff, as provided in the will of Leonárd L. Raymond, deceased; and he accordingly prays for partition of his said interest, and for all proper relief.
    Upon the hearing in the court of common pleas, a decree was entered, finding that defendant is the owner in fee simple of the one undivided half of the one hundred and thirty-eight acre tract, and that he has no interest in the thirty-three acre tract, and partition was ordered accordingly. Both. parties appealed, and in the circuit court substantially the same decree was entered.
    The plaintiffs claim error in the decrees as to the one hundred and thirty-eight acre tract, and the defendant claims error in the decrees as to the thirty-three acre tract.
    The following are the essential facts, as'they appear in an agreed statement which is embodied in the bill of exceptions allowed by the court. Silas Raymond, on the 18th day of May, 1872, was the owner of the one hundred and thirty-eight acre tract of land described in the petition, and on that date sold the same to his son, Leonard, as evidenced by a written instrument executed as a conveyance, that is, the same was signed, sealed, witnessed, acknowledged and delivered. This instrument contained the terms of an agreement by which Leonard was to pay to other children of Silas sums of ■ money aggregating twenty-eight hundred dollars and was to support his father and mother during their lives and the life of either. This instrument also contained a clause, as follows : "And it is by said parties further agreed, that in case said Leonard shall die before the completion of said agreement above, then and in that case his estate shall have such equitable interest in said premises as the amount of his fulfillment is to the whole value of the place, but in no event to be less than three thousand dollars, which is not to be carved out of the general property until after the death of my said father and mother.” The mother died first, and Leonard died December 27, 1880, leaving a will, which was duly probated, .by which he gave his interest in these lands and the thirty-three acre tract to his two sisters, Sophia and Sophronia, jointly during the life of both and .-then to the survivor and her heirs, as follows, to-wit: “First. I bequeath all'my right and interest in an agreement between Silas Raymond and myself (recorded August 31, 1872, Deed Volume 105, pages 457, 458, 459), also all my interest in land deeded to me by Mary Ann and Benjamin Waters (recorded February 18, 1878, Volume 120, page 318), all of the above to be conveyed.to them -Sophia and Sophronia Raymond their heirs and .assigns, on condition that they hold it together .jointly during their lives and in case of death of either the use of the above to revert to the survivor, her heirs or assigns (unless otherwise provided by the deceased).”
    A few .months after the death of Leonard, on January 8, 1881, Silas, the father, and these two daughters executed an instrument of writing, which recited the contract with Leonard and the will of Leonard devising his interest to his sisters, and these were ratified, and then the said Silas “on the above conditions and considerations granted and released unto said Sophia and Sophronia Raymond and their heirs and assigns all his right, title and interest in and to said real and personal property.” This instrument was also formally executed by signing and sealing in the presence of witnesses and was duly acknowledged and delivered.
    November 11, 1881, Silas died. In 1887, Sophia married one H. H. Butts, who had a son by a former marriage, and is the defendant in this action, and in 1906, Sophia died, leaving her sister, Sophronia* surviving. H. H. Butts died in 1907, and the defendant claims as his heir at law through his stepmother, Sophia (Raymond) Butts.
    
      Mr. I. T. Siddall and Mr. S. F. - Hanselman, for plaintiffs in error.
    The first question is did the first agreement or the second agreement divest Silas Raymond of the legal title? Both were mutual agreements. The first agreement is, “That Silas Raymond has sold’'’ to Leonard the one hundred and thirty-eight acre tract, describing it; the second is, “And I, said Silas Raymond, do hereby on the above conditions and considerations grant and release to,” etc., “all my right, title and interest” in same, with like description.
    We shall not extend this brief to any considerable extent upon this question. It is elementary that words of “bargain and sale” convey title where the written instrument is properly executed and delivered. There is no magic in the word “bargain” and we can not understand how it is possible for a “sale” of lands to be made without a transfer or passing of title. Lessee of Bentley’s Heirs v. Deforest, 2 Ohio, 222; Lessee of Hall v. Ashby, 9 Ohio, 96.
    The rule that in the construction of a will the intention of the testator as gathered from the will should prevail needs no consideration. These two sisters were maiden ladies advanced in years. The language of the will is clear and the contract indicates they lived together with the father, mother and brother in the old home: Were it not for the words in parenthesis there could be no question. Do these words enlarge the estate in Sophia? We think not.
    In Robbins v. Smith, 72 Ohio St., 1, a will giving to three daughters certain property, including real estate, the income of which was to be paid to them with power of disposing of equal share to each and in case of the death of one before the others intestate, such share should go to her children, and if there were no children then to the survivors was held to give but a life estate in the corpus, which passed on the death of one intestate without issue to the survivors. Anderson v. Messinger, 146 Fed. Rep., 929; Harding v. Marsh, 19 C. D., 676.
    In this case the right of disposition during the joint lives of the sisters was not given, but upon the death of either then all interest was to pass to the other, “her heirs or assigns.” The only possible inference in the words in parenthesis is a disposition by will, and in no wise enlarged the estate of Sophia. It is a clear proposition that where less than a fee is given, as for instance a life estate in the first instance and the right of disposition, such right is simply a power to be exercised or not, and does not in any way enlarge the estate. Home v. Lippardt, 70 Ohio St., 261; Johnson v. Johnson, 51 Ohio St., 446; Baxter v. Bowyer, 19 Ohio St., 490; Durfee v. MacNeil, 58 Ohio St., 238; Gogreve v. Day, 10 C. C., N. S., 69.
    We are aware that the statutory rule of descent. is governed by the legal rather than the equitable title when the two unite to form an estate in fee simple in one person. We have no thought of undertaking the fruitless task of undermining a rule so firmly established in this state. Patterson v. Lamson, 45 Ohio St., 90; Higgins v. Higgins, 57 Ohio St., 239.
    The whole contract shows clearly that all parties regarded that if the father held the legal title it was in a quasi trust not to cast the course of descent but for the benefit of third parties who were made beneficiaries and that while these contracts were not wills they were considered as disposing of and distributing his property to his .children and that to insure to each the gift he held in trust the title. Russell v. Bruer, 64 Ohio St., 1.
    
      Mr. R. S. Webb and Mr. R. J. Webb, for defendant in error.
    If the legal title of this property came to Sophia and Sophronia by purchase from their father, then on the death of Sophia, her interest in said lands descended and vested in her husband, absolutely, under the provisions of Section 4159, Revised Statutes, and on his death it descended to and vested in his son, this defendant; so it becomes important to determine whether it came by purchase or by deed of gift.
    It is well settled in Ohio that to be a deed of gift blood must be the only consideration, and if any other consideration is mentioned in the deed, it comes by purchase. Brown v. Whaley, 58 Ohio St., 654; Walker’s Am. Law (10 ed.), Secs. 154, 163.
    At the time of the making of this deed, the two daughters were the owners of the equitable interest which had come to them from the will of Leonard. By this deed from their father, they obtained the legal estate; and the whole estate, both legal and equitable, upon the delivery of the deed, vested and united in Sophia and Sophronia. Russell v. Bruer, 64 Ohio St., 1; Patterson v. Lamson, 45 Ohio St., 77; Stembel v. Martin, 50 Ohio St., 495; Higgins v. Higgins, 57 Ohio St., 239.
    The plaintiff, having accepted this deed, is bound by the recitals therein and said recitals operate as an estoppel and are binding upon both parties and privies in blood, in estate and in law. Groves v. Groves, 65 Ohio St., 442; Douglass v. Scott, 5 Ohio, 198; Lessee of Kinsman v. Loomis, 11 Ohio, 475.
    At the time of the making of this deed the interest of Silas was not a mere naked interest. He had sufficient title to have maintained ejectment, and did not hold it as trustee for the equitable estate, and there is no question of trustee and cestui que trust. Coggshall v. Bank, 63 Ohio St., 88.
    This clause: “And on the decease of said Silas Raymond, they the said Sophia and Sophronia Raymond, shall have and own jointly all of said entire personal and real estate, the accrued personal estate, to be theirs and their heirs forever,” . is an estoppel to plaintiff in all her contention in this case, so far as the one hundred and thirty-eight acres are concerned, Sophia and Sophronia having severally joined in the contract, not only making it a contract with their father, but a solemn and binding agreement between themselves that they should own this land jointly in fee simple, to be theirs and their heirs forever; a contract they had the right to make, and once made and entered into, can not now be disturbed, or changed.
    A legal estate never merges into an equitable one. Litle v. Ott, 3 Cranch (C. C.), 419; Bassett v. O’Brien, 149 Mo., 381; Penington v. Coats, 6 Whart. (Pa.), 282.
    As to the thirty-three acre tract. It is the universal rule of construction of wills that “when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate can not be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate.” Collins v. Collins, 40 Ohio St., 364; 30 Am. & Eng. Ency. Law (2 ed.), 687.
    The clause reading: “In case of the death of either the use of the above to revert to the survivor, her heirs and assigns (unless otherwise provided by the deceased),” is what might seem at first glance an ambiguous attempt to create an equitable • estate in perpetuity in the “heirs and assigns” of the survivor. This, being in conflict with the prior unequivocal gift in fee to Sophia and Sophronia, as well as contrary to the spirit of the law, is void and must be rejected, being in conflict with the general tenor of the clause. Davis v. Boggs, 20 Ohio St., 550; 30 Am. & Eng. Ency. Law (2 ed.), 688, 689.
    As to whether the thirty-three acre tract came by descent or purchase, our conclusion is that Sophia and Sophronia held fee simple estates in these thirty-three acres, which came to them by purchase. On the death of Sophia her interest descended by operation of law to her relict, H. H. Butts, in fee, at whose death it descended in fee to his .only child and heir, Charles Butts, the defendant herein.
    The will is simply the instrument, and, if a clause in a will conveys land for which a valuable consideration is exacted and is paid by the devisee, is it simply a devise within the meaning of the statute, is it not more in the nature of a sale? It certainly is not a devise where blood is the only consideration. It seems to us the plain intent of the statute is to class as ancestral property only lands passing by will or deed from an ancestor, where blood is the only consideration. 27 Am. & Eng. Ency. Law (2 ed.), 301; Kinney v. Glasgow, 53 Pa. St., 141; Walker v. Dunshee, 38 Pa. St., 430; Abbott’s Law Dictionary, “devise.”
   Davis, J.

From the time that Silas Raymond entered into the agreement with his son, Leonard, in respect to the one hundred and thirty-eight acre tract in controversy here, the latter had a substantial equity in the land, an equity which grew in value with the lapse of time. By the express terms of the agreement, in case of the son’s death before complete performance on his part it was provided that the equitable interest of his estate in the premises should be in proportion as the amount of fulfillment by him is to the whole value of the land, but in no event to be less than $3,000.00. This equitable interest, as between the parties to the agreement and their privies in estate and all parties having knowledge of the conditions of Leonard’s possession, was such that, so long as he continued to perform his contract, Silas could not convey the legal title free from the equity, and this interest of Leonard was clearly property which he could devise.

At the time of Leonard’s death, he had been in possession of the land and had faithfully performed the conditions on his part for a period of eight years and seven months. Meantime his mother had died, and, as the event proved, he needed only to have performed his agreement ten and one-half months longer, when he would have fully performed and would have been entitled to have his equity merged in the legal title. But this was not to be and he met the situation with his last will and testament. He had acquired the thirty-three acre tract by deed and this tract, together with all his interest in the one hundred and thirty-eight acre tract under the agreement with his father, he' devised and bequeathed to his two sisters, Sophia and Sophronia and their heirs and assigns, “on condition that they hold it together jointly during their lives and in case of death of either the use of the above to revert to the survivor, her heirs or assigns (unless otherwise provided by the deceased).” The clause in parenthesis merely gave to the devisee dying first a power of disposition by will, at least that is the only intelligible meaning which we have been able to give to it. Sophia died before Sophronia and without having exercised the power of appointment; so that under the will Sophronia and her heirs and assigns sueceeded by survivorship to the ownership of the thirty-three acre tract and the equities of Leonard, the testator, in the one hundred and thirty-eight acre tract. It was not in the power of Silas, the father, to thwart or prevent the succession under the will except by refusal to accept the fulfillment of Leonard’s contract by his devisees; but this he did .not do. On the contrary, both he and the devisees consented to and ratified the conditions of the will in the contract of January 8, 1881; and the sisters could not take both under and against the will. That is to say, they could not take the thirty-three acres by devise and claim the one hundred and thirty-eight acres by purchase. Therefore the quit-claim by Silas in the last mentioned contract was not a conveyance of the one-hundred and thirty-eight acres upon a new and distinct consideration and so a deed of purchase, but was in fact and was intended to be a conveyance in subordination to the will of Leonard and to carry out its true intent and purpose. Our conclusion is that the defendant in error never acquired any interest whatever in either tract of land; and in accord with these views the judgment of the circuit court is reversed as to the one hundred and thirty-eight acres, affirmed as to the thirty-three acres, the cross-petition dismissed, and judgment is given for the plaintiffs in error.

Reversed.

Shauck, Price, Johnson and Donahue, JJ., concur.  