
    Wyman v. Newberry et al.
    (Decided April 18, 1929.)
    
      Messrs. Van Epp £ Porter, for plaintiff.
    
      Mr. Guy O. Farquharson, for defendants.
   Pardee, J.

This case is here on appeal, the defendants being the appellants. Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397.

The plaintiff, John P. Wyman, filed a petition in the court of common pleas seeking the partition of a small tract of real estate with buildings thereon, located in Hinckley township, Medina county.

The plaintiff claims that he is the owner of one undivided half of said property in fee simple, and of an estate for life in the other one-half of said property, and that the three defendants are the owners of the fee of the latter one-half, which is subject to his life estate.

The plaintiff claims that he derived his title to the undivided half which he owns in fee simple by purchase, and that he became the owner of the life estate by the will of Geneva M. Wyman, his wife, who died on the 4th day of' April, 1922, and whose will was admitted to probate and record by the probate court of Medina county.

The plaintiff asks that partition of the land be made in severalty; but, if the same cannot be done without manifest injury to the value of said property, plaintiff asks that the property be sold as provided by law, and that the share and interest of the plaintiff in said property, including the money value of his life estate in the undivided one-half part thereof, be paid to him out of the proceeds of said sale, he claiming to be 71 years of age and in good health.

To this petition the defendants filed a general demurrer, which was overruled, and then answered by admitting the title of plaintiff in said property, but denying that he is entitled to partition, because he is in the sole possession of all of said property. Defendants also deny his right to have the value of his life estate paid to him in money in event the court finds him entitled to partition, that the property cannot be divided, and is required to be sold.

It is conceded that the plaintiff and his wife were joint owners and in possession of all of said property at the time of her death, that he was devised the life use of the one-half owned by her, and that upon her death he elected to take under her will and went into possession of her half by virtue of said devise.

So, is plaintiff, under these circumstances, disabled from having partition of said property, or from having it sold if it cannot be divided? We think he is not so disabled.

The plaintiff owned in his own right, at the time he acquired his life estate, one unincumbered undivided half of said property, and he was in the lawful possession thereof, with the right to ask for a partition and have his one-half set off in severalty, or the whole property sold, as provided by the partition laws of this state. There was not then, and is not now, a prior life estate upon the whole of said premises,, nor upon the half which he owns in fee, and his election to take under his cotenant wife’s will, and the rights which accrued therefrom, were not related to, or connected with, the rights which he previously possessed as the independent owner in fee of the other one-half of said property, and the will did not contain any provision, which, by his election to take thereunder, estopped him from asserting the rights which he possessed as such independent owner. And the mere fact that he owned one-half of said property, and that he acquired the life use of the other half thereof, does not affect or prevent him from asserting those precedent rights which were attached to his interest in the property at the creation of said life estate.

In the case of Lauer v. Green, 99 Ohio St., 20, 121 N. E., 821, the Supreme Court held:

“1. The provisions of Section 12026, General Code, confer upon every tenant in common having the possession or an immediate right to the possession of lands, the right to compel partition of the same.
“2. The estate of such tenant in common cannot be affected or his right to compel partition defeated, deferred or limited by the provisions of the will of his cotenant whereby he attempts to entail his estate including the lands owned as a cotenant. ’ ’

And in the opinion, on page 25 (121 N. E., 823), it is stated: “If a tenant in common by creating a contingent remainder or by entailing his estate may affect the right or interest of his cotenant, it would be within the power of any tenant in common, by creating such an interest, to prevent partition and deprive his cotenant of his right thereto conferred by statute, which, of course, cannot be permitted. The difficulty of making partition and the inconvenience resulting to other tenants furnish no sufficient reason for denying it.” See, also, Morgan v. Staley, 11 Ohio, 389; Tabler v. Wiseman, 2 Ohio St., 208; Eberle v. Gaier, Jr., 89 Ohio St., 118, 105 N. E., 282.

We are therefore of the opinion that the plaintiff does state a good cause of action and is entitled to have partition or sale of said property as provided by law.

The next question presented is: Can the plaintiff have the value of his life estate determined and paid to him in money out of the proceeds of the sale, if the commissioners determine that the property cannot be divided and that a sale' of the entire tract is advisable? We do not think so.

The plaintiff relies upon Section 12042, General Code, which reads as follows:

“When a widow is entitled to dower in an estate of which partition is sought, dower must be assigned her therein, except in the following cases:
“1. When an assignment of it already has been made;
“2. When, by answer, she has elected' to be endowed out of the proceeds of a sale of the estate, and the commissioners do not make partition, but return a valuation of it;
“3. When the right of dower extends only to an undivided interest in the estate;
“In the latter case, and in cases where an undivided interest is subject to a life estate, and the tenant for life has not, by answer, elected to receive the value of his estate out of the proceeds of a sale of the interest, if an appraisement of the estate is to be returned, the commissioners may assign the dower, or set off the life estate, or, if they find it for the interest of the parties so to do, they may appraise the whole interest, and the widow and the tenant for life shall receive the value of their interests out of the proceeds of a sale of it.”

The plaintiff’s life estate was created by his wife’s will, in the following terms, to wit:

“Item 2nd: I hereby give, devise and bequeath to my beloved husband, John P. Wyman, the use of all of my property, both real and personal during the term of his natural life.”

And the residuary estate was disposed of in the following terms, to wit:

“Item 5th: After the decease of my said husband, I hereby give, devise and bequeath all of the remainder of my property, both real and personal, in fee simple, to my sister * * * one-third; to my sister * * # one-third; and to my brother * * * one-third.”

In the petition the plaintiff asked, as hereinbefore stated, to be paid the value of his life estate in money, if it be found that the property cannot be divided and an appraisement is, for that reason, returned. The defendants object to having the value of the life estate determined and the value thereof paid to the plaintiff in money out of the proceeds of the sale.

The foregoing statute does not give to the plaintiff, as the owner of the life estate, the affirmative right to ask for a determination of the value thereof, but only gives him that right by inference from the terms used; but it does provide that, if the commissioners find it for the interest of the parties so to do, they may appraise the whole interest, and the widow and the tenant for life shall receive the value of their interests out of the proceeds of such sale.

But we have serious doubts that the fóregoingquoted statute applies at all to the facts in this case, or to any case where the life estate and the estate in remainder are created by the same instrument, or to a case where there is a life estate without an estate in dqwer.

When the decedent made her will, and gave her surviving husband, upon her death, the life use of her interest in said property, and devised the remainder to the three defendants, she was doing that which she had a legal right to do; and, when the plaintiff elected to accept the provisions of. her will, instead of claiming the rights given to him by, law as her widower, his rights and the.defendants’1rights under said will became vested estates, entitled to tbe protection given vested estates by tbe Constitution of this state.

By decedent’s will, and acceptance of the terms of the same by tbe plaintiff, be was given tbe use of one-balf of ber real estate so long as be lived, and tbe defendants’ estate in remainder in said property was burdened by said precedent use, and their enjoyment of tbe same was postponed until plaintiff’s death. While tbe Legislature undoubtedly has tbe power to provide by law for tbe partition of real estate, and also tbe power to provide for tbe sale of entailed estates, we do not believe it has the power to provide for tbe sale of estates created as this one was, and to change tbe estate from a life use in one-half of said property to a vested estate in tbe present worth in money of said life use, over tbe objection of tbe defendants, tbe remaindermen. These estates were created by tbe acts of tbe parties, and not by operation of law, and, when so created, it is beyond tbe power of the Legislature to change them, over the objection of any of tbe owners thereof.

When tbe decedent gave tbe plaintiff tbe life use of ber real estate, she did not give him tbe-option to ask for tbe sale thereof, and for a determination of its value, and payment of that value to him in money. Tbis she might have done, but for reasons of ber own she did not do. The laws of tbis state, give a person of full age, and of sound mind and memory, and not under restraint, tbe right to dispose of property by last will and testament lawfully executed. Tbis was done by decedent. Do we now have tbe power to make a will for her, or modify tbe one she lawfully made, upon application of one of the devisees named by her? Are we to,say that the election made by her husband in the probate court, as provided by law, is a mere formality? Are we to understand that he did not intend to accept the will as made, except so long as it suited his convenience, and that, when the time came that'it appeared more advantageous to him to .have the value of his life estate determined, and given to him in money, he could make a supplemental election under the will, over the objection and to the injury of the remaindermen, who had a vested estate under said will in such remainder?

We do not think so, as that in effect would be making a new will for said decedent, changing the descent and distribution of her property, giving the plaintiff a vested estate at once in a large part thereof, instead of the life use of the whole, and reducing the estate in remainder from a vested estate in the whole, with the right to its use at the death of plaintiff, to a vested estate in a part, with the right to its immediate possession and enjoyment.

If it is competent for the Legislature to give the plaintiff, as the owner of the life estate, this right, it is placing a limitation upon the power of disposition of property by will, and is in effect an enlargement of the statutes giving the courts the power to sell entailed estates. If the Legislature has this power, it is sufficient to say that it has not exercised it.

We are therefore of the opinion that the plaintiff does not have this right, and that Section 12042, General Code, does not have any application to the instant case; but, if it be found that the estate cannot be divided without manifest injury, and a sale for that reason is necessary, the plaintiff should be paid the value of the one-half owned by him in fee, and the proceeds of the other one-half should be held by a trustee, appointed by the court for that purpose, and invested as provided by law, and the income, after paying proper charges, should be paid to plaintiff, and the corpus, upon his death, distributed to the remaindermen, as their interests may appear.

Decree accordingly.

Funk, P. J., and Washburn, J., concur.  