
    Bierce v. Bierce.
    The will of D. contained the following clauses:
    “I further will and bequeath to my wife Martha Darst all the rest and residue of my estate, real and personal, to be kept by her during her lifetime. I further direct that after the death of my wife, Martha, all the property then remaining shall constitute a fund . for the support and maintainance of my daughter, Ann Bierce, and her children during her life; and at the death of my said daughter Ann, the same shall be equally divided between her children. * * * * * * I further will and direct that if at the death of my daughter, Ann, she shall not have left any living child or children, the property shall be equally divided between the living daughters of my brothers Henry and Jacob Darst, and the two youngest daughters of sister Catherine Clem.”
    
      Held: 1. The “fund” so constituted was charged with the support and maintenance of Ann and her children as its primary object. If the income proved insufficient the principal could be resorted to for proper support.
    2. The personalty having been properly consumed, and the income from the realty being materially insufficient for said support, the decree of a court of common pleas (having jurisdiction of the subject matter and of all parties in interest), construing the will and authorizing sales by Ann and her husband, and the application of the proceeds to said support, will not be reversed because the court omitted to require security from, or accounting by, them.
    Error to the District Court of Pickaway County.
    On the 10th daj'- of October, A. D. 1848, Isaac Darst of Pickaway county, died testate. His will read thus:
    
      I, Isaac Darst of the county of Pickaway and state of Ohio, at present in usual good health, do make and publish, this my last will and testament, in form following, to wit: I direct that after my death, my executors, hereinafter named, proceed to settle all my business by first collecting all which may be due me and paying all my debts as speedily as possible, using also what money may be on hand for the payment of my debts. Should the money on hand and debts due me be insufficient for that purpose, I direct that that part of all my personal effects, as my wife may direct and not wish to retain, be sold at public vendue and the proceeds applied to the payment of my debts, and in the event of there not being sufficient personal effects to pay all demands against me, I will and direct that such portion of my real estate, as may be considered by my executor least productive, be sold at public sale, and to the best advantage, and the proceeds applied, as hereinafter dii'ected; and upon the sale of anjr portion of my real estate, I hereby authorize and direct my executor to make to the purchaser or purchasers a deed in fee simple for the same. I further will and bequeath to my wife Martha Darst all the rest and residue of my estate, real and personal, to be kept by her during her lifetime. I further direct that after the death of my wife Martha, all the property then remaining shall constitute a fund for the support and maintenance of my daughter, Ann Bierce, and her children during her life; and at the death of my said daughter Ann, the same shall be equally divided between her children. I would further provide and direct that should my daughter Ann become a widow, or should her husband, W. W. Bierce, by sickness or otherwise, become disabled from doing business and supporting his family during the lifetime of my wife, she, my said daughter, shall have the occupancy of the house she now occupies with the privilege of a small garden on lot No. 11, in the town of Circleville, free of charge. I further will and direct that if at the death of my daughter Ann, she shall not have left any living child or children, the property then shall be equally divided between the living daughters of my brothers Henry and Jacob Darst, and the two youngest daughters of sister Catharine Clem. I hereby constitute and appoint my friend Jacob H. Lutz executor of this my last will and testament.
    Given under my hand and seal this 21st day of December, A. d. 1843.
    (Signed), Isaac Darst, [seal].
    Signed, sealed in presence of
    Vi. P. Darst,
    Lewis Huber.
    By February, A. D. 1864, Martha, the widow, was dead ; so much of the “residue” as’was personalty had been consumed; Ann was living with her husband and was the mother of nine children. Six of these were minors. The only “ residue ” then remaining consisted of certain farming lands, and some lots in, or adjacent to Circleville. Part of this was not only unproductive, but had been, for twenty years, an expense to the estate; and the income from the whole of it was materially insufficient for the support of Ann and her children. Thereupon Ann, whose full Christian name was Elizabeth Ann, suing by her next friend, began a civil action in Pickaway common pleas making her husband, her children, and the persons who would be entitled to said residue in case of her decease leaving no child surviving her, defendants. Her petition, after stating the other material facts, and describing the remaining real estate, proceeded thus:
    “The plaintiff says that on or about the third day of April, 1855, said Martha Darst died. That the plaintiff is the first devisee for life under said will, if she is not a: devisee in fee simple. That doubts have arisen as to whether your petitioner is entitled to a fee simple, or life estate in the said lands. And your petitioner being desirous of selling said lands is not able to do so on accouiit' of apprehension in the minds of some persons as to the title. The petitioner further says that a part of said real estate is unproductive, and has been an expense for twenty years. That there is no personal estate now remaining of said testator. That all his debts have been paid. That it is necessary to sell said-real estate in order to support said petitioner and her children; that said sale will be for the benefit of the petitioner and do no injury to the heirs in remainder, if there are any. Your petitioner prays that said will may be construed by the court, and the question determined whether she may under any circumstances, and if so, under what circumstances, sell said lands in fee simple; and that the court may order the same, to -be sold, or in case the court shall refuse to order and adjudge a sale under the aforesaid prayer, then your petitioner asks a sale of the same under the ‘Act to-provide for the sale or lease of estates tail in certain cases,’ passed April 4th, 1859, or for such relief as may be just and proper.”
    The summons for the minors and its return read thus:
    Summons.
    ‘‘ State of Ohio, Pielcaway County, ss:
    
    “ To the Sheriff of said Piehaway County:
    
    “ You are commanded to notify Lucy Bierce, Frank Bierce, aged 14 years, Harriet D. Bierce, aged 12 year's, William W. Bierce, Jr., aged 10 years, Columbus Bierce, 6 years, Elizabeth A. Bierce, aged 10 years, that they have been sued by Elizabeth A.. Bierce, by Mary Bierce, her next friend, in the court of common pleas of Pickaway county, and that unless'they answer by the 18th‘day of June, A. D. 1864, the petition of the said plaintiff against them filed in the clerk’s office of said court, such petition will be taken as true, and judgment rendered accordingly.
    “You will make due return of this summons, on the 80th day of May, A. D. 1864.
    Witness my name, and the seal of said court, this 21st day of May, A. D.T864. “ O. Qrmsbee, Clerk.
    [seal.] “Wm. Bowman,
    Deputy Clerk.”
    
      Sheriff’s Return.
    “Received this writ May 21, 1864. I have executed the command of this writ by delivering a certified copy thereof, with endorsements thereon, to each of the within named defendants. Also delivered to Elizabeth A. Bierce, Sen., a copy thereoff or each of the minors under the age of 14 years, she being the mother, and having the custody and control thereof.
    “ P. H. Delaplane, Sheriff.
    “ By W. E. Bolin, Deputy. ”
    At June term, A. D. 1864, the court appointed a guardian ad litem for said minors. He filed the statutory^ answer on July 6, same year. The case was decided at said term and the following decree entered:
    “ And this cause coming on to be heard upon the petition of the plaintiff, and the answer of the said infant defendants, by their guardian ad litem, and it appearing that all of the said defendants have been duly served with process, and that George W. Bierce, Martha Bierce and Mary Bierce, have filed their consent that the prayer of the petition should be granted, and the said premises described should be sold, as asked by her. And it further appearing by testimony in open court that the allegations of the said pétitiou are true, and more especially, that it is necessary to sell the said premises named in the said petition, in'order to support and maintain the said petitioner and her children, and the court being of the opinion that the said will authorizes said petitioner as trustee for herself'and'children, in the event of its being necessary to the support of herself and children, to sell said premises, do order, adjudge and decree, that the said Elizabeth A. Bierce, and W. W. Bierce, her husband, proceed to sell said premises, for the said purpose, at such times and'places, and at public or private-sale, as they may deem best, and that she apply the proceeds, or the interest thereof, in case the money be invested, to the support and maintenance of herself and children, according to the provisions of said will, but the purchaser thereof shall not be responsible for the application of said moneys.
    “It is further ordered that the said petitioner and her husband execute deeds to the purchasers when said premises are paid for, and that they pay 'the costs of this suit, taxed to $30.20.”
    William W. Bierce, Jr., one of the minors defendant, became of age on May 25, 1877, and Columbus Bierce, another of said minors, on February 2, 1879. On the 8th day of April A. D. 1879, they with other defendants, filed in Pickaway district court a petition in error asking a reversal of the decree of 1864.
    1 On Tuesday, April 15, 1880, by leave of said court of common pleas, the return on the summons of May 21, 1864, was amended as follows: ' '
    Pickaway County, Ohio, Court or Common Pleas.
    Elizabeth A. Bierce, by Mary Bierce,'') her next friend, Plaintiff, vs. William W. Bierce, and others, Defendants.
    
    “ By leave of court granted in 'this case to the undersigned, late sheriff of said county, he amends his return to the summons, which was issued to him and dated May 21st, 1864, which return is dated May 24th, 1864, by adding at the end . of said return, and before his signature theréto, the following words: ‘ The copies of the said summons which were delivered to the Elizabeth Ai Bierce, Sen., as above stated, were also at the same time left at the usual place of residence of the said William W. Bierce, the father of the said minors, to wit: Frank Bierce, ■Lucy Bierce, Columbus Bierce, Elizabeth A. Bierce, Jr., William W. Bierce, Jr., and Harriet Bierce, in the city of Cir.cleville, in said county of Pickawáy.
    “P. I-I. Delaplane,
    “April 15, 1880. Late Sheriff of Pickaway County, O.’’
    
      The original summons was attached to said amended return.
    The order allowing said amendment was made by the court upon motion, after due notice to the parties concerned, and after a finding by the court that the facts stated were true. The parties plaintiff in error excepted to the order.
    The district court affirmed the decree of 1864, and this court is now asked to reverse both judgments.
    C. B. Matthews and Matthews & Shoemaker, for plaintiff in error.
    That the intention of the testator was not to have the land sold, is evident from these considerations.
    First. The words of the will are not that all of the property remaining after the death of his widow shall be turned into a fund but that it shall constitute a fund, or in other words, shall be a fund.
    The property is the parts, the fund is an aggregate, and when we say the several parts constitute the whole, we mean simply that they are the whole, the whole being merely the parts considered in the aggregate or in their totality.
    If the land had to be sold before the fund could arise, it would be obviously incorrect to say that the land constituted a fund because, when one or more things constitute another, their cotemporaneous existence is necessarily implied, but in the case supposed, the one goes out of existence in order that the other may arise. I do not mean by this that the land is annihilated but quoad the estate of Darst and as a part of said estate it ceases to exist, and therefore cannot constitute a fund as to said estate. 2 Barb, ch. 22; Baker v. Lorillard, 4 Comst., 257; Pruden v. Pruden, 14 Ohio St., 251.
    The testator describes the subject matter of the devise to. his daughter as the property and in providing for its going over to the children, he says the same shall be equally divided, etc. The same means the same property and nothing else, Harris v. Poyner, 1 Drew., 174, and when he makes provision for the case of the daughter’s death without leaving children, he again calls it the property. The presumption is that he used the word property in the two places in the same sense as describing the same subject matter.
    Why did he not say the said fund shall be divided equally, etc., and the said fund shall go to the daughters of my brothers, etc. ?
    How can the property constitute a fund for the maintenance of Ann Bierce, etc., during her natural life, and the same go to her children, if any, thereafter, and if not the property to go to others, if Ann could sell the property or the same and spend the money without let or hindrance ? 2 Bigelow’s Jarman on Wills, 61 n.
    
    You cannot reconcile the entire consumption of the estate with its continued existence at the death of Mrs. Bierce, implied from the devise to her children. How could the property constitute a fund during Mrs. Bierce’s life in any other way than by limiting the maintenance to the income?
    In Bradley v. Peixoto, 2 Ves. Jr., 324, a condition repugnant to an estate tail was held void. And in Mainwaring v. Baxter, 6 Ves., 460, an express trust inconsistent with' a subsequent devise was held void.
    The property was to constitute a fund during the life of Ann Bierce. Constitute is to form or compose as an element. Worcester’s Die. During means “for the time of the continuance of.” Worcester’s Die. By putting the definitions for the words themselves in the will it would read: “ All the property then remaining shall form or compose a fund for the support and maintenance of my daughter, Ann Bierce, and her children for the time of the continuance of her life.” .Or, in other words, shall for the time of the continuance of her life, compose, etc.
    .The court is bound to give effect to every word of the will, without change or rejection, provided an effect can be given to it, not inconsistent with the general intent of the whole will taken together. Bigelow’s Jarman on Wills, *page 472, note 1.
    
      The argument that there is a trust, and yet that the mother could spend all the property is suicidal in its effect. Pushman v. Filliter, 3 Ves. Jr., 7; Malim v. Keighley, 2 Id., 529 a.
    That Mrs. Bierce could spend the fund negatives the idea of a trust. Can there be a trust to fritter away the trust fund? If there can be, what is the object of providing for children? If a testator forbids a sale, then the argument is that the children cannot be maintained. .If he provides that they shall be supported, then the parent can pocket the property. In either event what becomes of the children? Jubber v. Jobber, 9 Sim., 503; Hubbard v. Young, 10 Beav., 203.
    There is no trust involved in Isaac Darst’s will. There is no express devise to the daughter, but it was evidently intended that she should have a life estate. There is no disposition until her death. See Bigelow’s Jarman on Wills, *557. The testator merely gives his reasons or motive for the gift, when he mentions maintenance.
    The following authorities sustain this proposition : Gilbert v. Bennett, 10 Sim.,371; Crockett v. Crockett, 2 Phil., 553.; Scott v. Key, 35 Beav., 291; Armstrong v. Armstrong, L. R., 7 Eq., 518; Lambe v. Eames, L. R., 6 Ch. App., 597; Hammond v. Neame, 1 Sw., 35 ; Benson v. Whittam, 5 Sim., 22; Thorp v. Owen, 2 Hare, 608; Andrews v. Partington, 2 Cox, 223; Brown v. Casamajor, 4 Ves., 498; Biddles v. Biddles, 16 Sim., 1; Byne v. Blackburn, 26 Beav., 41; Bigelow’s Jarman, *402, *404, *391 et seq.
    
    But suppose it is conceded that Mrs. Bierce was a trustee, what follows? Did she sue as trustee to obtain a construction of the will? Not at all. Who represented the trust estate in the suit below? Nobody.
    It is a fundamental rule in the doctrine of parties, that they are such only in that character, which the statement of the pleadings attribute to them, and in no other. Calvert on Parties, 2.
    If Mrs. Bierce was suing as trustee why use a next friend? The trust is nowhere mentioned in the record, except in the decree.
    If Ann Bierce was a trustee with a power of sale, would she not, under the law, in case of a sale be obliged to invest .on good security? Could a court authorize her to do any less than her legal obligation ?
    The following cases support the positions taken in this brief in every particular: Decker v. Decker, 3 Ohio, 157; Bigelow v. Barr, 4 Id., 358; Howe v. Fuller, 19 Id., 51; Worman v. Teagarden, 2 Ohio St., 384 ; Brasher v. Marsh, 15 Id., 109; Parker v. Parker, 13 Id., 95; Baxter v. Bowyer, 19 Id., 498; Davis v. Boggs, 20 Id., 560; Huston v. Craighead, 23 Id., 206; Gillen v. Kimball, 34 Id., 352; Smith v. Bell, 6 Peters, 68.
    The court below also erred in rendering judgment against the infants, because they were not properly served with process.
    Section 69 of the code of procedure provided: When the defendant is a minor under the age of 14 years, the service must be upon him and upon his guardian or father, or if neither of these can be found then upon his mother, or the person having the care or control of the infant, or with whom he lives.
    The service below, even as amended, was not proper, but the court had no power to allow an amendment, as there was nothing in the record to amend by. Doty v. Rigour, 9 Ohio St., 526.
    
      Henry F. Page, for defendants in error.
    There is no devise to the executor as a trustee, and no duty is enjoined on him. When all the debts are paid he is functus officio. The estate devised to Martha Darst was to be kept by her during her natural life. The testator made no disposition of the fee in direct and apt words. In such case it descends to the heir. In this case it descended to his only child, Ann Bierce, in trust for her and her children during her life, and after her death, to her children. Hill on Trustees, 471.
    
      There being no devise to the executor, and no trust created in him, the testator intended that his daughter should use, and receive and apply the “ fund,” to the support and maintenance of herself and children during her life. This was substantially a devise and bequest of all his remaining property to her for such term, and for such uses and purposes.
    Ann Bierce may sell any of the property, in order to “ support and maintain ” herself and children, if it is necessary. Norton v. Norton, 2 Sanf., 276 ; Andrews v. Bank, 3 Allen, 313 ; 2 Spence’s Eq. Jur., 366 ; Going v. Emery, 16 Pick., 111; Putnam v. Fisher, 30 Me., 527; Winston v. Jones, 6 Ala., 550; Hinton v. Powell, 1 Jones’ Eq. N. C., 230; Perry on Trusts, § 766; 4 Kent Com., 319; Mather v. Norton, 16 Jurist, 309; Schermerhorn v. Same, 6 Johns. Ch., 70; Pruden v. Pruden, 14 Ohio St., 251.
    “ After the death of my wife, Martha, all the property then remaining shall constitute a fund for the support and maintenance of my daughter, Ann, and her children.”
    The property “ then remaining” was, in a large measure, unproductive real estate, or in such a condition as to render an outlay necessary to make it profitable.
    Property of that description could not “ constitute a fund for the support and maintenance ” of a woman and her children. It required to be changed into money to constitute a fund for that purpose; which fund in whatever shape it might be put would be a trust fund.
    The word “fund” implies a conversion into personal estate. The testator used it in that sense.
    The remainder of his estate was to be a common stock, or sum of money for a certain purpose. Unproductive real estate could not constitute a fund or sum of money for that purpose. Iñ order to answer the purposes of the trust it must be sold.
    ■ Moreover, if the fund was exceedingly small, and wholly insufficient to maintain the said Ann and her children, for more than one year, she might absolutely consume the whole fund for that purpose. It was left to her in order- to support and maintain Ann and her children. That was the primary and grand object of the testator. Every other object was unimportant in comparison with this. Consequently, if the support and maintenance of herself and children required the use or total consumption of the fund, it might be so consumed.
    Did the testator say that Ann Bierce should keep this fund for her children? He directed that his wife should “ keep ” it for Ann, but in effect he directed Ann to use it for herself and children.
    It is true that the will provides that “ at the death of my said daughter, Ann, the same shall be equally divided between her children.”
    The word “ same ” in the sentence just quoted, implies that the fund is to go to the children of Ann Bierce after she and her family have had their support and maintenance out of it, after it has accomplished the first and great object of,the testator. This means what may remain after the fund has been used for the support and maintenance of the family.
    The court is particularly requested to note the fact that the testator does not say, said real estate, said lots or said farm, shall go to the children of Ann Bierce, but he says “ the same,” that is, the same “ fund.” It is the same fund whether it has been increased or diminished in the life time of Ann Bierce.
    As to amendment of return: The power to all our officers to make amendments is liberally exercised.
    It has been permitted after twenty years, 4 Shep., 124, or as the court say in 7 Humph., 59, at any time. It has been permitted after the officer went out of office, or after he has been sued.
    In many of the following cases there -was nothing to amend by except the recollection of the officer.
    Parol evidence is allowed to amend a record, and why not a return of the sheriff? Lambert v. Mustard, 18 Ohio St., 419; 25 Conn., 337.
    See also the following cases: Buck v. Hurdy, 6 Greenleaf, 162; Smith v. Daniel, 3 Murphy, 128; Rucker v. Harrison, 6 Munf., 181; Woodward v. Harbin, 4 Ala., 534; Gilman v. Stetson, 4 Shep., 124; Planters Bank v. Walker, 3 Smedes & M., 409; Pierce v. Strickland, 2 Story, 292; Spear v. Sturdivant, 2 Shep., 263; Strange v. Forward, 7 Ala., 463; Childs v. Barrows, 9 Met., 413; Palmer v. Thayer, 28 Conn., 237; Hopkins v. Burch, 3 Kelly, 222; Atkinson v. Rhece, 7 Humph., 59; Hoages v. Laird, 10 Ala., 678; Parker v. Warren, 2 Allen, 187; Avery v. Bourman, 39 N. H., 393; Gorham v. Hood, 27 Ga., 299; People v. Ames, 35 N. Y., 482; Webster v. Blount, 39 Mo., 500; Newton v. Prater, 1 Duvall, Ky., 100; Niolin v. Harmon, 22 Ala, 578; Porter v. Miller, 7 Texas, 468; Moss v. Thompson, 17 Miss., 405; Stone v. Wilson, 10 Gratt., 529; Blaisdell v. Steamboat, 19 Miss., 157; Adams v. Robinson, 1 Pick., 461; 17 Pick., 106; 35 N. Y., 482; 15 Ind., 192; 25 Id., 455; see Freeman on Ex., § 63.
    
      Harrison, Olds Marsh, also for defendants in error,
    made substantially same points as their associate counsel, and in addition claimed: The court of common pleas had equitable jurisdiction on either of three grounds.
    First. The support and maintenance of Ann Bierce and her children was charged upon the property. The court had jurisdiction in equity to enforce the charge and to subject the property to it.
    Second. The uncertainty as to the construction of the will and as to the rights of the parties under it, was a cloud on the title and rights of Ann Bierce, who w'as the tenant in possession, and who had therefore a right to come into equity to remove the cloud and to quiet her title.
    Third. Ann Bierce was a trustee for her children. She took the legal title by devise or descent, and held it and the property not for her sole benefit, but for the benefit of herself and others. She took and held them for the support and maintenance of herself and her children. This was not a mere passive trust, but was one imposing upon her the active duties of receiving, managing and applying the fund to the support and maintenance of all the beneficiaries.
    The trustee being in doubt as to her power and duties, had the right to apply to a court of equity to define them, and give judicial sanction to her acts, and the court had jurisdiction to direct, assist and protect her in the administration of the trust.
    The facts are set forth in the petition of Elizabeth Ann Bierce from which her character and capacity as trustee appear. It was unnecessary for her to aver the legal conclusion that she was a trustee.
    Mrs. Bierce being a married woman, it was proper that a next friend responsible for costs should be named.
    No objection was taken to her petition for want of legal capacity to sue, or defect of parties.
   Granger, C. J.

The case has been fully and ably argued. Counsel have aided us by exhaustive citations from decided cases. After a full review we are satisfied that a careful reading of the will in the light of the circumstances of the testator and of his relation to the objects of his bounty, plainly indicates its true construction.

“ The rest and residue ” of the estate “real and personal” was to he kept by the widow during her life time. In case, during the widow’s life time, Ann should be deprived of the support of a husband, either by his death, his sickness, or otherwise, Ann could occupy the house and garden on lot No. 11, Circleville, free of charge. From and after the widow’s death, all of the property then remaining, real as well as personal, was to “ constitute a fund for the support and maintenance of Ann and her children during her life.” The words “ shall constitute a fund ” are full of meaning. The word “fund” savors of personalty; it means something that can be invested and reinvested. It included, as we think, the intent, that, if for the increase of income or the full and proper maintenance and support of Ann and her children, any sales of realty should become necessary, such sales could lawfully be made: — the proceeds taking the place of the lands sold as part of said fund. It was clearly the intent of Isaac Darst that his daughter and her children should be supported and maintained by said “ fund ” from Martha’s death until Ann’s decease. That support and maintenance was expressly charged upon this “ fund ” without any word indicating that the charge was to be limited to the income of the fund. In such a case if the income happens to be sufficient the principal must remain intact; but if the income becomes insufficient that cannot relieve the “fund” from its duty. The “fund” must furnish the support.

But it is' claimed that because the will directs that at Ann’s death '•'•the same shall be equally divided between her children; ” and that in case no child of hers survived her “ the property then shall be equally divided ” between certain nieces of the testator, the charge in favor of the support of Ann and her children ought to be limited to the-income of the fund.

If a specified parcel of land be devised to A., without further words indicating the estate so given, and the same land is devised “ upon the death of A. to B.,” of course A. can hold only as tenant for life and cannot lessen the estate of the devisee in remainder. But “ a fund ” charged with the support of A. for her life, does not cease .to be “ the fund” because some of its principal is necessarily consumed in supporting A. Hence the words “ the same ” are not so definite as to require, or even to justify, a denial of needed support to Ann and her children during her life, in order to pass to those children, or to her cousins at her decease, the unbroken “ residue.” Considering the relation of the testator to Ann, the natural interpretation of his words treats that support as the primary, the paramount object in his mind. He used more words in providing for Ann and her children during her life, than in stating all of his other devises and bequests. The grant for her benefit, standing by itself, is full and complete. We have no right to limit it unless, without we do so, no reasonable construction. can be placed upon the subsequent clauses of the will. For myself, the correlation of the words incline me to think that the will as dictated read that “the property then remaining shall be equally divided between ” the nieces; and that by a lapsus pennce the word “ remaining ” was omitted. The word “ then ” was unnecessary as an indication of the time for the division. Without it the death of Ann leaving no surviving child determined the time. But treating this thought as of no moment, we regard the words “the property” in this will as- too indefinite to justify a refusal to Ann and her children of any part of their needed support. The policy of Ohio law is unfavorable to entails. Is it not also so unfavorable to provisions “tying ” up property that it will not by liberal construction create such limitations? We do not believe, and the words of the will do not make it our duty to hold, that if the income had been so small that it could not supply Ann and her children with ordinary food and clothing, none of the principal could be applied to preserve .their lives, or health, We may well think that Isaac Darst cared more for his grandchildren than for his nieces; yet the construction claimed by the plaintiffs in error .would, in the case supposed, hasten the death of Ann’s children by exposure and lack of sustenance, in order to transfer to his nieces the fund upon which the support and maintenance of those grandchildren was the primary charge; and that too with the fact before us that the testator expressly preferred to give the whole of that fund to those grandchildren instead of to those nieces.

It is urged that Ann’s minor children were not properly served. The original return showed that a certified copy of the summons was handed to each minor and one also to their mother with whom they were living. It did not state affirmatively that a copy was left at the usual place of residence of their father. The decree included a finding by the court that all the defendants had been legally served. Oral proof that the mother was at her husband’s home when the sheriff handed the copy to her did not contradict the return. After the formal finding by the court the presumption is that the fact was properly proved unless that presumption contradicts the return on the writ. We have no fault to find with the abundance of caution shown by the motion and order that resulted in the filing of the amendment to the return. We think the record shows that the court had jurisdiction of the subject matter and parties. While it was within the power of the trial court to require Ann and her husband before making sales to furnish security that they would properly hold, use and account for the proceeds subject to the control of the court, the omission to use that power was not error affecting the validity or legality of the decree.

Judgment affirmed.  