
    EXECUTORS AND ADMINISTRATORS — WILLS—TRUSTS.
    [Lorain (7th) Circuit Court,
    April 29, 1904.]
    Hale, Marvin and Winch, JJ.
    Burt Moore et al. v. Josephine Idlor et al.
    1. Widow not Bound to Exhaust Hee Separate Property or be in Actual Need Before Subjecting! Corpus of Life Estate to Her Support, When.
    A widow who waives her right of dower by electing to take under the will is not hound to exhaust all her separate property, or he in danger of , actual want or need, in order to avail herself of the corpus of certain property given to her for life “with power and authority to sell, transfer and assign the whole or any part thereof, if necessary, for her support;’’ the corpus may he subjected if the income of her separate property and. the life estate is insufficient for her support.
    2. Children Take Pro Rate Under Will, When.
    The will of a deceased husband by which the widow was given an estate for life in certain property in lieu of dower, which she accepted, provided that “if at the death of my said wife, any of said property, or enough thereof remains undisposed of, I give and devise the same as follows: Two thousand dollars to be disposed of by my said wife by will or otherwise absolutely as she may see fit,” followed by several bequests amounting to $3,500 to three children and one grandchild, respectively, making §5,500 in the aggregate; a subsequent clause in the same item provided that “if at the decease of my said wife, there should not remain undis-posed of by her the sum of $3,500, then the same or what remains thereof Is to be divided pro rate between” the children and grandchildren referred to. Less than $3,500 of the property was left at the death of the widow; Held, there being less than $3,500 left at the widow’s death, which amount was insufficient to allow the widow to dispose, by will, of $2,000, and to pay the $3,500 of bequests to the children and grandchild as provided in the first part of the'will, the children and grandchild, in such event, can only take under the pro rate clause of the will.
    
      3. Application for Year’s Allowance Must be Made to Pbobate Court.
    Application for the widow’s year’s allowance must be made to the probate .court, which has original and exclusive jurisdiction; such application cannot be made to the circuit court.
    4. Life Tenant not Debtor of Remainderman but a Trustee.
    The relation of debtor and creditor does not exist between the life tenant and remainderman as such; the former holds rather as trustee. Suck trust continues in the executor of the life tenant who takes possession of the property after his death. ,
    
    4. Statute of Limitations not Applicable to Continuing Trust.
    The statute of limitations does not run against a continuing trust.
    C. W. Johnston, and J. H. Leonard, for plaintiffs:
    Charlotte Moore had only a life estate in this property with remainder over to the plaintiffs and Josephine Idlor, coupled with two powers, viz.: (a) The power to dispose of any or all of the property in ease she needed it for her support; and (b) to dispose of $5,500 by will, provided there was so much left her at her death. Johnson v. Johnson, 51 Ohio St. 446 [38 N. E. Rep. 61]; Greene v. Greene, 57 Ohio St. 628 [50 N. E. Rep. 1129]; Lepley v. Smith, 7 Circ. Dec. 264 (13 R. 189) ; Thurston v. Bissel, 7 Circ. Dec. 235 (13 R. 293); Turley v. Turley, 11 Ohio St. 173; James v. Pruden, 14 Ohio St. 251; Davis v. Corwine, 25 Ohio St. 668; Baxter v. Bowyer, 19 Ohio St. 490.
    The power to use for her support was on condition that she needed the property for her support. This condition is a condition precedent. 4 Kent’s Commentaries, 124; Page, Wills 826; Petit v. Railway, 114 Mich. 362 [72 N. W. Rep. 238]; Mersman v. Mersman, 136 Mo. 244 [37 S. W. Rep. 909]; Parmelee v. Railway, 6 N. Y. (2 Seld.) 74; ■22 Am. & Eng. Ene. Law (2 ed.) 1123,1124; Minot v. Prescott, 14 Mass. 496.
    This power could not be exercised except in case of actual need. 22 Am. & Eng. Enc. Law (2 ed.) 1156; Hall v. Culver, 34 Conn. 403; Peck-ham v. Lego, 57 Conn. 553 [19 Atl. Rep. 392; 7 L. R. A. 419; 14 Am. St. Rep. 130]; Griffin v. Griffin, 141 Ill. 373 [31 N. E. Rep. 131]; Lehnard v. Specht, 180 Ill. 208 [54 N. E. Rep. 315, 316]; Minot v. Prescott 14 Mass. 496; Rathbun v. Colton. 32 Mass. (15 Pick.) 471; Hammond V. Conkright, 47 N. J. 447 [20 Atl. Rep. 847].
    Conditions attached by the donor to the execution of the power must be strictly complied with, however unessential they may seem. 18 Am. & Eng. Enc. Law (1 ed.) 937; 4 Kent’s Commentaries, 330, 334, 335; 2 Washburn, Real Prop. 317; Smith v. Provin, 86 Mass. (4 Allen) 516; Richardson v. Crooker, 73 Mass. (7 Gray) 190; Roarty v. Mitchell, 73 Mass. (7 Gray) 243, 244; Wickersham v. Savage, 58 Pa. St. 365; Hall v. Towne, 45 Ill. 493; Rice v. Tavernier, 8 Minn. 248; Page, Wills. 826; Petit v. Railway, 114 Mich. 362 [72 N. W. Rep. 238]; Mersman. y. Mersman, 136 Mo. 244 [37 S. W. Rep. 909].
    The cashing of the notes was not a conversion. Burleigh v. Clough,. 52 N. H. 267, 283 [13 Am. Rep. 23, 39, 41].
    The rule of law governing .this class of cases is well and clearly stated in Bishop v. Tiemple, 11 Ohio St. 277, 281; 18 Am. & Eng. Enc.. Law (1 ed.) 930, 931, 933, 934; 4 Kent’s Commentaries (12 ed.) 334 to-336; Schouler, Wills Secs. 525, 526; 2 Jarman, Wills 272, 279; Blagge v. Miles, 1 Story 426 [3 Fed. Cas. 559].
    Tlie statute, 1 Yict. 26, Sec. 27, passed in 1837, changed .this rule-for England. Many states have altered their statute to follow the-English statute. 18 Am. & Eng. Enc. Law (1 ed.) 930; Schouler, Wills. Sec. 526; 2 Jarman, Wills 279. Hence they are not applicable in this, case.
    The statute must be pleaded or is waived. 1 Bates, Pleading 110;: Vore v. Woodford, 29 Ohio St. 245; Sturges v. Burton, 8 Ohio St. 215.
    Defendant will not be allowed to amend his answer setting up the statute of limitations. Angelí, Limitations Sec. 285; Sheets v. Baldwin, 12 Ohio 120,127,129; Jackson v. Varick, 2 Wend. 294; Eldred v. Oconto Co. 30 Wis. 206; Wolcott v. McFarlan, 6 Hill 227.
    Day is trustee and the statute does not run. Johnson v. Johnson, 51 Ohio St. 446, 460, 461 [38 N. E. Rep. 61]; Quinby v. Walker, 14-Ohio St. 193; Dabney v. Manning, 3 Ohio 321, 325. /
    An executor,.holds on the same terms as his testator. Perry, Trusts (1 ed.) Secs. 264, 269, 344, 828; Johnson v. Johnson, 51 Ohio St. 446' [38 N. E. Rep. 61]; Quinby v. Walker, 14 Ohio St. 193.
    The statute of limitations does not run against an express trust.. Perry, Trusts (1 ed.) Secs. 828, 863; Sec. 4974 Rev. Stat.; Fuller v. McEwen, 17 Ohio St. 288; Quinby v. Walker, 14 Ohio St. 193; but if the statute runs it is the six-year statute. Section 4981 Rev. Stat.
    Day is liable personally and not as executor. Quinby v. Walker,. 14 Ohio St. 193, 198, 199; Perry, Trusts (1 ed.) Sec. 263; Johnson v. Johnson, 51 Ohio St. 446' [38 N. E. Rep. 61]; Fuller v. McEwen, 17' Ohio St. 288; West v. Deán, 8 Ciro. Dee. 797 (15 R. 261).
    E. G. Johnson, H. C. Johnson and Lee Day, for defendants.
   MARVIN, J.

(Orally.)

The ease of Burt Moore,, Emma Gorham and William Idlor against Josephine Idlor and others, comes into this court by appeal fromi the court of common pleas.

The facts are, that on May 15, 1878, Amandar Moore, a resident of Lorain eonnty, Ohio, died testate leaving a considerable estate. He left a widow, Charlotte Moore, who lived for about eighteen years after the death of her husband. The plaintiffs, Burt Moore, Emma Gorham and the defendant, Josephine Idlor, are the only children of said testator who survived him, and they together with his said widow and the plaintiff William Idlor, who is his grandson, are the only beneficiaries under his will who have any interest in the subject-matter in this controversy.

The first item of the will of said testator is as follows:

"Item 1. After all my lawful debts are paid, I give and devise unto my beloved wife, Charlotte Moore, my farm situated in Avon township, Lorain County, Ohio, in section eighteen, containing about twenty-five aeres. I also give and devise unto her, two promissory notes, given to me by my brother Charles Moore, one for $1,200 and the other for $46 with all interest which may be due on them at the time of my decease, which notes are secured by mortgage on his home farm in Sheffield township, which mortgage I also give and devise to her. I also give and devise, unto her two notes given to me by William Kramer, for $500 each, secured by mortgage, on part of lot No. 4 South Bass Island, Lake Erie, with the interest due thereon at my decease. Also one note given to me by M. R. Moore and Leonard Moore for $500 and the interest due thereon at my decease. All of the above property I give and devise to my said wife, Charlotte Moore, during the term of her natural life, with the power and authority to sell, transfer and assign the whole or any part thereof, if necessary, for her support, and execute and deliver a deed or deeds in. fee simple to the purchaser or purchasers of said twenty-five acres in section eighteen, Avon. If, at the death of my said wife, and of said property, or enough thereof, remains undisposed of, I give and devise the same as follows: Two thousand dollars to be disposed of by my said wife by will or otherwise, absolutely as she may see fit; $1,000 to my dáughter, Emma Gorham, now in California; $1,000 to my son, Burt Moore; $1,000 to my daughter, Josephine Idlor; $500 to my grandson, William Idlor.
‘‘If at the decease of my said wife there should not remain undis-posed of by her the sum of $3,500 then the same or what remains thereof is to be divided pro rata between my said daughters, Emma and Josephine, my son Burt, and Grandson William' Idlor, or to their heirs respectively. All of the above-mentioned and described property, real. and personal, devised to my said wife, is given and devised to her in lieu of her dower right in my estate. I also give and devise to my said wife, all of my household goods and furniture of every kind and description to be hers absolutely. ’ ’

Said widow elected to accept the provisions of this will. The executors of the said will in the settlement of the estate delivered to said Charlotte the personal property, except as hereinafter mentioned, which was bequeathed to her and took her receipt therefor; filed their accounts in the probate court claiming credit for the property so delivered to and receipted for” by her, and their accounts were approved.

The exception as to delivering to her the property so bequeathed to her is, that instead of delivering to her the $500 note against M. R. Moore and Leonard Moore given to her by the terms of the will, they delivered to her in lieu of said note a United States government bond for $500. This is shown by her receipt therefor and by the accounts filed by the executors in the probate court. So that there came into the hands of said Charlotte from her husband’s personal estate notes given by Charles Moore amounting to $1,200; notes given by William Kramer amounting to $1,000; and the United States government bond for $500. These notes were all secured by mortgage, and were all collected by her or for her; she had also the use of the twenty-five acres of land from the time of her husband’s death.

Mrs. Moore had property of her own, $8,000 or more independent of her husband’s at the time of his death, which she continued to own until her death.

Charlotte Moore died testate in 1895; her will reads as follows:

‘ ‘ I, Charlotte Moore declare the following to be my will.
“Item 1. I give to Jay Idlor, of Put-in-Bay, and to Bertie Moore, of California, each the sum of $100.
“Item 2. All the balance of my estate real and personal I give and bequeath to Nettie Hecoek, daughter of Isaac Hecock, deceased, Hattie Heeock daughter of Sarah Woodruff, deceased, Kate Miller daughter of Catherine Miller, deceased, Mary Day and Karl Day, widow and son respectively of Eugene I. Day, deceased, and to all of my nieces and nephews of my blood to share and share alike, save and except that said Mary Day and Karl Day shall together receive only an equal share with sa'd other named parties who are to share and share alike as stated.
“I name Sumner Day as executor of this will. He shall have full power without order of court therefor to sell my real estate and deed to purchasers to make in fee simple.
‘1 He need give no bond. ’■’

The defendant, Sumner Day, was duly qualified as executor of such will, and took possession of all the personal estate of which Charlotte Moore was possessed at her death, and proceeded to administer upon the ■same as her property. He also took possession of the twenty-five acre :farm.

The only item of personal property which came into his possession-in kind as it came from the estate of Amandar Moore was the $500 bond. It is true that the evidence is not such as to make it absolutely certain "that the $500 United States government bond, which was in the possession of Charlotte at her death, was the $500 bond which she received from the executors of the will of Amandar Moore. Mr. Day thinks that she had this bond prior to her husband’s death; but it is certain that she received a $500 United States bond from the executors of the will of her ibusband, and as a part of his estate. It was said in argument — attention was called in argument to the fact that the inventory filed by the ■executors of the will of Amandar Moore did not show such bond. Schedule D, which was read to us does not, but the inventory shows that there were United States bonds owned by him and a part of his estate, -and the receipt of Charlotte to the executors of Amandar Moore show that in lieu of the $500 note against M. R. Moore and Leonard Moore, she accepted a government bond which was not in terms bequeathed to her. So we find as a fact, that the bond which was in her possession at the time of her death was the same bond which came to her from the executors of the will of Amandar Moore. No other personal property, which was by the will of Amandar Moore given to her was in her possession in kind at the time of her death. The notes against Kramer and against the other parties named, either were collected by or were collected for her.

There was some claim made that $1,000 collected upon these notes, two of them, never was paid to her, but the evidence did not show that. The notes were all secured by mortgage, and so far as we can determine from this evidence were all paid, so that she became possessed of the avails of these notes when she parted with the notes.

It is urged on behalf of the plaintiffs, that since by the terms of -the will of Amandar Moore, the right to sell and dispose of the property which she took under the will of Amandar, could only be exercised in case it became necessary for her support, the language being:

“All of - the above property, I give and devise to my said wife ■Charlotte Moore, during the term of her natural life, with the power and authority to sell, transfer and assign the whole or any part thereof, if necessary, for her support.”

It is urged that because sbe had property of her own sufficient to have provided for her support. Not necessarily the income of it, for it is shown that she was a considerable part of the time in such circumstances and in such state of health that she required assistance; but that in any event, whether the income of her own property together with thfe income of the property left by Amandar Moore was sufficient for her support, she was bound to have used her own property, a part of it if necessary for her support before she could avail herself of any part of the principal of the property left by Amandar.

In support of that we are cited to the case of Hull v. Culver, 34 Conn. 403, and the language used in that opinion goes very far toward supporting the proposition urged here by the plaintiffs.

It should be said here, that the will executed by the wife and providing for the support of her surviving husband, provided in these words: “I give all my estate to my beloved husband, to use during his natural life, and if he should want for his support to sell any part.or the whole of it for his maintenance, my will is that it shall be at his disposal.” The court held that the word “want” meant “need;” and said that before he could make sale of that property there must be an actual need; and in discussing that .proposition the court used this language, page 405:

“The defendant however urges, certainly not without plausibility, that the husband was to be the sole judge of his necessity. But as we understand it, the contingency was to be his actual need and not his expectations or opinion of it. The authorities on this point seem to be conclusive.” Citing 1 Hilliard, Real Prop. Chap. 57, Sec. 9, which we have not examined. Minot v. Prescott, 14 Mass. 96; Stevens v. Winship, 18 Mass. (1 Pick.) 318 [11 Am. Dec. 178], and Larned v. Bridge, 34 Mass. (17 Pick.) 339, which we have examined.

Without stopping to read from those cases, the cases do not, it seems to us, support the proposition which they are here cited to support, if the proposition is to be taken as meaning that the husband must have been in danger of actual want from all sources before he could make a sale of any of the property which it was provided in the will of his wife he might make sale of- if it became necessary for his support.

The other cases are, where, by the language of the will it is clear, the support was to be out of the property bequeathed.

There is this difference also to be noted. As a proposition of law it is the business of the husband to support his wife, it is the business of the husband to make provisions for the support of his wife after his •death, and if he fails to do it, the law makes a provision for her.

It is true the law makes a provision for a surviving husband; but it is not in the same sense the business of the wife to provide for the support of the husband that it is the business of the husband to provide for the support of his wife.

The will which we are considering provides in terms, that that which is bequeathed to the widow shall be in lieu of her dower.

The inventory of the estate of Amandar Moore and the settlement of the account show that his was quite a large estate. If this widow had rejected this will, she would have received much more in value than she received under the provisions of the will, and she parted with a very valuable right when she consented to accept the provisions of this will. It would seem inequitable that she should be required before she could .get anything more than the income of the little twenty-five acre farm and of about $2,700 of personalty, she should exhaust all she had herself in her support, and we hold that that is not the law applicable in this «ase.

It is shown by the evidence that the necessities of this woman were such as to make it reasonable to say that she required in addition to the income of her own separate property and the income from her husband’s, something out of the principal of this property. The evidence traces, as I have stated, no part of the personalty in kind, which was left by Amandar Moore, into the hands of the executor of the will of Charlotte Moore, nor into the hands of Charlotte Moore as remaining with her up to the time of her death, and we think it fair to say that she might very reasonably have expended in her support all of this personalty that was not still in her possession when .she died, to wit, the United States bond for $500.

It is furher urged here on the part of the plaintiffs, that whatever property Charlotte left at the time of her death, that came to her from Amandar, is to go to the parties named in this first item of the will as remainder-men, as being entitled to the property, a life estate in which was granted to Charlotte Moore, and that no part of that could be disposed of, or in any event no part of it was disposed of by the will of Charlotte, and a somewhat troublesome question in this case is, whether Charlotte did dispose of any part of it by her will, and indeed whether she had any right to dispose of any part of it by her will.

The language is peculiar. It is easy to conceive of circumstances where the language of the will would not exactly dispose of all this property.

Having given to Charlotte a life estate in this property, he says: “If at the death of my said wife any of said property, or enough thereof,”, enough for some purpose, “remains undisposed of, I give- and devise the same as follows: Two thousand dollars to be disposed of by my said wife by will or otherwise absolutely as she may see fit. ’ ’ If it was to remain with her up to her death, it is difficult to conceive of any way except by will that she Could have disposed of it. But before-she could dispose of it as we construe this will, theré must have been, enough property to have not only — the wording is peculiar. “If at the death of my said wife, any of said property or enough thereof,” that is, enough as we construe it to make the following bequests; if there is enough to do the things that I hereinafter speak of, she may dispose of $2,000 of it by will or otherwise, not necessarily by will. “Two-thousand dollars of it to be disposed of by my said wife by will or otherwise, absolutely as she may see fit; $1,000 to my daughter Emma Gorham,, now in California; $1,000 to my son Burt Moore; $1,000 to my daughter "Josephine Idlor; $500 to my grandson William Idlor.” Now, if there-was $5,500 or more, he has provided for the disposition of $5,500. “If at the decease of my said wife, there should not remain undisposed of by her the sum of $3,500 then the same or what remains thereof is to be divided pro rata between my said daughters Emma and Josephine, my son Burt, and grandson, William Idlor, or to their heirs respectively. ’ ’

Now, as a matter of fact, there was less than $3,500 left of this property at the death of Charlotte. There was the land, which it is not claimed was worth over that amount. It was stated to be worth about $1,400 by somebody, but no difference if it was worth $100 an acre, there-being only the land and the bond, there was less than $3,500. There was' not enough to make the disposition that he provided for, allowing-Charlotte to dispose of $2,000. Now it is true, that here would be a curious situation if there had been $4,500. Whoever had the duty upon him to determine what this will meant, would have to read something into it to make it mean anything. But bince that question isn’t here we need not undertake to say what would be done, nor do we .determine whether, if there had been $5,500 left, the residuary clause of the will of Charlotte, would have been a disposition of $2,000 by her. That question is not here; there was less than $3,500. That being true, we hold that the bond and the real estate go, under the will of Amandar Moore, to the plaintiffs and the defendant Josephine Idlor in the share of twó-sevenths to each of the three children of the testator and one-seventh to the grandchild named.

It appears in evidence, however, that the right of Josephine Idlor has been bought in by the executor, so that share will go to him as executor, whatever would otherwise have gone to Josephine. Two-sevenths to Day as executor, two-sevenths to Burt Moore, two-sevenths to (Emma Gorham, and one-seventh to William Idlor.

Some other questions were discussed in the case, one was, that no allowance was made to the widow, Charlotte, for her support for one year from the time of her husband’s death. No claim for such support seems ever to have been made; if it had been made, the court having original and exclusive jurisdiction in that matter has not been appealed to in this case, to wit, the probate court, and we cannot make any allowance for any support for the widow. It was urged on the part of the defendants here, that if these parties were entitled to anything, they were entitled as creditors and should have filed their claim for money with the executor. If they were claiming that' Charlotte Moore in her lifetime was indebted to them, that would have been the way; but they make no claim that Charlotte Moore ever owed them anything, she did not owe them anything; she held some property in trust, she to have the use of it for a lifetime with a remaiüder over to these parties.

When Mr. Day became executor of her will that trust was forced upon him and he held this property in trust, and that trust has continued. No statute of limitations to prevent plaintiffs from maintaining this action.

The decree may be that the real estate be sold, and of the net avails the disposition shall be .made as indicated; that Day shall make disposition of the avails of this bond together with whatever accumulations there have been since the death of Charlotte Moore, in the ratio already indicated.

And the costs of this whole proceeding may come out of this property.

Hale and Winch, JJ., concur.  