
    No. 287
    DeFORD, Excr. v. ROWE, et
    No. 20357.
    Supreme Court
    On motion to certify.
    Dock. 3-2-27,
    5 Abs. 153.
    1271. WILLS — 1. Where codicil is executed is this a republication of the will changing its date to that of the republication?
    2.Where bequest is made to institution and within a year prior to testator’s death, he executed a codicil, can an action in which the bequest is sued for be maintained?
    Attorneys — John T. DeFord and George Fritz for Executor; A. H. Straman for Lodge; all of Ottawa.
   In February 1917, S. F. DeFord subscribed to Ottawa Lodge, No. 325, Free and Accepted Masons, $600 to be applied for the erection of a Masonic Temple which temple had not been begun and was not begun .until some time subsequent to June 5, 1917. He paid $100 in April leaving the Lodge $500 as a bequest in his will, made on June 5, 1917. Later, but prior to his death, S. F. DeFord paid the full bal-anee of $500, and on Sept. 7, 1917, executed a codicil. On March 2, 1922, S. F. DeFord died leaving issue of his body four children, named as residuary legatees in the will.

In November 1917, the Masonic Temple Co. became the owner of the fee of the lot upon which it erected the temple. The legatee lodge commenced the action originally in the Putnam Common Pleas before a final settlement of the estate of S. F. DeFord, deceased was made, and before any order of distribution by the Probate Court. The Common Pleas court found in favor of the lodge in the sum of $500 and the Court of Appeals affirmed the judgment. In the Supreme Court it is contended:—

1. That the codicil executed in December 1921, republished the will and redated it as of that date; and the testator having died n less . than one year thereafter, leaving issue of his body the bequest sued for is void under 10504 GC.

2. That there was no equitable conversion provided for in the will for the payment of the legacy sued for.

3. That the payment by the testator, during his lifetime, to the Lodge of $500, constituted a satisfaction and discharge of the legacy.

4. That insufficient personal property was left for payment of legacies after payment of the testator’s inseeured debts.

b. That additional legatees who are not made parties and in the absence of settlement of the estate, if the judgment of the lower court should exhaust the estate, the other legatees would be deprived of their rights without having their day in court.

6. That the heirs are subrogated to the debts to the amount which the heirs have paid out of the issues and profits of the real estate.

Note — Motion to certify overruled, 5 Abs. 199.  