
    William B. Foster vs. Henry Wick’s Lessee.
    By the following clause in a will, “The farm and town property rented to T. L. W.» deceased, 1 will to the three children of T. L. W.} providing they live to legal age,” the devisees acquire a vested right immediately on the death of the testator, subject only to be divested in the event of death before they arrive at legal age, where such a construction harmonizes with the other provisions of the will.
    This is a Writ of Error, directed to the Court of Common Pleas of Mahoning County.
    The action below was Ejectment. The plaintiff counted upon two demises; one from the executors and trustees of Henry Wick, deceased, and the other from six of the sons of the deceased, three of whom are the afor'esaid executors. On the trial of the cause, at the April term, 1847, of the Common Pleas of Mahoning County, a bill of exceptions was tendered and allowed, as follows
    This cause coming up for trial to the jury, the defendant by his counsel, by motion in writing, asked the Court to put the plaintiff to his election of the two separate demises laid in the declaration, for the reasons set forth in said writing, but the Court refused so to do, until the testimony should be given.
    The plaintiff then offered in- evidence the will of Henry Wick, deceased, (it being admitted by both parties that the title was in Henry at his decease, and both parties claimed title under him) which said will is as follows :
    
      “I, Henry Wick, of Youngstown, Trumbull county, and State of Ohio, do hereby constitute and appoint, my sons Henry Wick jr., Hugh B. Wick and John I). Wick, my executors to settle my estate, and I do will and bequeath to my wife Hannah, at my death, one hundred dollars, and in lieu of her dower, five hundred dollars, as soon as she approves of this my will; and five hundred each and every year during her natural life; also the use of my present dwelling house in Youngstown, and the three lots adjoining and near the same, not otherwise disposed of, also the land near the village of Youngstown that now occupy for meadow, pasture not otherwise disposed of; all my household and kitchen furniture she may want for keeping house so long as she continues my widow, but at her death or marriage my executors will take possession of said property and dispose of it as hereafter directed; but if she chooses to get her dower as the law directs, so far as it respects her to be void, and the balance of my will to be complied with, as near as may be; and I will and bequeath to each of my children now living what land and town property I have rented to them, as their property forever, and the property rented to Thomas L. Bane, I will to his wife Matilda Bane; and the farm and town property rented to Thomas L. Wick, deceased^ I will to the three children of Thomas L. Wick, providing they live to legal age. Also each of my children is ,to pay thirty dollars each and every year for the support, and education of said children, all to be under the control and direction of my executors, and is to be in full for their support and education, without any further charge against said children, and when said children arrives of age, or when my executors may think most to the advantage of said children, they may give each of them one thousand dollars which I will to them providing they live to legal age, but when paid, the thirty dollars to be paid by my children to stop, and if said children all dies before they arrive at legal age, this will as respects them to be void, as I wish none but my blood-kind to enjoy my property; and I direct my executors to retain in my possession all my bank and canal stock, and the land and town property, the use of which my wife has the use of, or as much as will be all-sufficient to pay all my debts, legacies and donations, and the balance to be divided equally among my children then living, and my farming utensils, live stock, and what my wife don’t keep, to be sold at vendue; and if there should not be property of canal and bank stock to pay all claims, I wish my executors to retain in their hands as much of other debts due me as will pay all. Also, I allow my executors to sell a house and lot at the mouth of mill creek and a lot in Vernon, as they may think best; and I wish all disputes that may arise with my children to be decided by a majority of them, and that decision to be binding on all, providing it don’t make void any of my before mentioned will. I would recommend to my children honesty, industry and piety, and avoid all species of gambling; and now farewell my kind and loving wife, my children and the blest, that I may meet you in the Heavens, where I do hope to rest.”
    Which will was dated June 16,1843.
    The plaintiff then offered in evidence a paper, of which the following is a copy:
    “ Articles of agreement made and entered into by and between Henry Wick of one part, and T. L. Wick of the other part witnesseth, that the said Henry hath agreed to rent or let unto the said T. L. W. the King farm, and the said T. L. W. agrees to take said land and pay the said Henry twelve dollars and fifty cents per year on the first day of October, in each and every year so long as he occupies said land, and the said Henry reserves all coal, timber and fruit he may want for his own use and what hay and grain is now on the farm, and the privilege of taking said rented land in his own possession whenever he may choose, at which time all rents are to stop. Witness our hands this first day of December, 1837.
    Henry Wick,
    T. L. Wick,”
    It was admitted on the trial that the children of Thomas L. Wick deceased, are yet minors.
    The plaintiff offered to give in evidence writings showing that each of the children of Henry Wick had, before the making of the will, bound themselves to pay $30 a year each, to the children of Thomas L. Wick, deceased, and that this was the same $30 per year mentioned in the will, and claimed that the will referred to these writings. The defendant objected, and the Court sustained the objection to the introduction said papers, because the will did not refer to them, and they were not proper to explain the will. The plaintiff resting, the defendant insisted upon having his motion sustained, requiring the plaintiff to make his election of demises; but the Court refused to sustain said motion and put the plaintiff to his election of the separate demises laid in the declaration, and were of opinion that the said demises were not so inconsistent as to put the plaintiff upon his election, but were properly laid, and overruled said motion.
    The defendant then claimed and proved that he was in possession under the guardian of the children of Thomas L. Wick, deceased, for their benefit, and it was admitted by the plaintiff that he was in possession under the guardian and rightfully in possession, unless the will gave the right of possession to the lessors of the plaintiff. It was admitted that the lessors named in the second demise in the plaintiff’s declaration, were children of Henry Wick, deceased, and all the children now alive.
    The defendant then offered to give in evidence the following letter of Henry Wick, deceased, to wit:
    “ Youngstown, March 29th, 1843.
    Henrietta: I have just received yours and am happy to hear of the welfare of yourself, children and friends. As respects your living where you are, or coming to Youngstown you can suit your own convenience, but I think it would be well to rent the house and farm that I calculate for Thomas’ children, and I have made arrangements for each of my children to pay $30 a year with the rents of the other property for the support and education of Thomas’ children. The thirty dollars a year from each of them will amount to $210, besides the rent, which is to be in full without any charge on the children, as I expect to give the children more when I think it is the proper time. If you think to stay where you are, you had better come or get your father to come and rent the property as you may think best, as I am not able to attend to it, as my very poor. A swelling on one of my feet preme from walking. In haste yours respectfully,
    Henry Wick.”
    (Indorsed) “Mrs. Henrietta Wicic, Alleghenytown, Allegheny county, care of Wm. B. Foster.”
    And offered to prove in connection with this letter that during the life time of Henry, deceased, Wm. B. Foster, the defendant, and father of Mrs. Henrietta Wick, the widow of Thomas L. Wick and mother of said children of Thomas, rented and controlled said King farm and the rents and profits thereof for the benefit of said children, and that he the guardian of said children has ever since controlled and rented said King farm, for the use and benefit of said children. The object of offering said letter and testimony in connection therewith, was to show the conduct of Henry Wick, deceased, shortly previous to the making of his will and unto and at the time of making his will, in order to explain the facts existing out side of the will, and to which the will referred, and to explain the will and show the intention of the testator, when applying the terms of the will to the facts existing out side of it. But the Court were of opinion that there was no latent ambiguity in the will, or any such ambiguity as could be explained by the letter and testimony, and rejected said letter and testimony.
    The defendant then rested.
    The plaintiff claimed by virtue of said will,
    1. That the children of Henry Wick, deceased, named in the second demise in the declaration, were entitled to the possession of the King farm, as the residuary legatees and devisees under said will, and that said children by Thomas L. Wick, were not by said will entitled to said farm until they should arrive at age.
    
      2. ■ That if the said children were entitled to said farm before they should arrive at age, that then the executors named in said will, and in the first demise, were entitled to the possession of said King farm as executors and trustees tinder said Will. ■
    The defendant claimed the contrary of these two
    But the Court charged the jury that the children of Thomas L. Wick were not entitled to the possession of said farm till they should arrive at age. That no estate vested in them, or could vest in them, till they should arrive at age, but that on the death of the testator the right of possession vested in the heirs of Henry Wick, subject to be divested by said children arriving at age, and directed the- jury to return a verdict for plaintiff. To which several opinions and decisions of the'Court, rejecting of testimony and charge to the jury, the counsel for the defendant excepted during the trial, and now in open Court tenders this his bill of exceptions, and prays that the same may be signed and sealed and made part of the record in said cause, and the same is here done accordingly in open Court.
    The jury found a verdict for the plaintiff, upon which judgment was rendered, to reverse which this writ is prosecuted.
    The following is the assignment of errors:
    1. The Court of Common Pleas erred in rejecting the letter of Henry Wick.
    2. The Court erred in charging the jury that by the will of Henry Wick, the children of Henry L. Wick were not entitled to the land claimed, till they should arrive at age.
    3. The Court erred in charging that said estate was one upon condition that the.y arrive at age, and that no present right of use and occupancy vested in them.
    4. The Court erred in charging that the children of Henry Wick now living, are entitled to said land, and to the possession, and that the legal estate is vested in them until the children come of age.
    5. The Court erred in not putting the plaintiff below to make his election of demises, and in not deciding that the demises were inconsistent with each other.
    6. The Court erred in charging the jury that on the death of the testator the right of possession vested in the heirs of Henry Wick, subject to be divested by said children arriving at ’age.
    7. The Court erred in directing the jury to return a verdict for the plaintiff.
    8. The Court erred in giving judgment against the plaintiff.
    9. The Court erred in rejecting the testimony offered in connection with said letter of said Henry Wick, to show the circumstances which existed at the time of the execution of the will, and thus get at the intention of the party, and explain a latent ambiguity in the will; and in deciding that there was no latent ambiguity in the will.
    
      Tod, Hoffman if Hutchins, for Plaintiff in Error.
    JR. jP. Ranney and JR. W. Tayler, for Defendant.
   Avery, J.

The defendant in the original action is in possession of the premises in dispute, under the grand children of Henry Wick, deceased. Their claim to these premises is denied by the lessors of the plaintiff, who assert that the legal title and the right of possession belong either to the executors of said Henry, or to his children, devisees in his will. Which of the parties has the right, and should therefore, ultimately succeed in the action, depends upon the construction to be given to this will.

The second, third, fourth and sixth of the errors assigned, all relate to this right and construction; presenting the important question, and indeed, from the result to which the Court has been conducted, the only question of any consequence in the case; for the decision by the Court below, upon any one or all of the other points arising under the assignment, whether correct or erroneous, would not affect the judgment now to be rendered.

The will begins with the appointment of three of the testator’s sons, to be his executors. Next it makes provision for giving her certain sums of money, the use of some real estate and furniture, and $500 to be paid her yearly. After closing the arrangement respecting his widow, the testator proceeds as follows: “I will and bequeath to each of my children, now living, what land and town property I have rented to them, as their property forever; and the property rented to Thomas L. Bane, I will to his wife Matilda Bane.”.

By this provision, the testator gives to each of his children, then living, as their property forever, all the land and town property which he had before rented to them; thus converting at once, in -each case, the leasehold into a fee simple estate. He then proceeds with respect to lands similarly situated, and in the same sentence, gives the farm and town property rented to Thomas L. Wick, deceased, to the three children of Thomas L. Wick.

So far, he shows an intention to treat the children of Thomas, in regard to the land rented to their father, just as he had treated his own children; devising to them the same land which had been rented to their father, and intending it to be theirs, as an estate in fee simple, should they live to enjoy it.

Upon the trial in the Common Pleas, there was offered in evidence by the plaintiffs, a lease from Henry Wick to T. L. Wick. It does not appear by the bill of exceptions that this lease was rejected by the Court, and there seems no valid reason for excluding it. It is therefore regarded, by us, as competent evidence in the issue between these parties. The premises for which the present action is brought, are described in the declaration as a part of lot number 29, containing 76 acres, more or less, and known as the “ King farm.” It was the “ King farm ” which Henry Wick, in the.lease above mentioned, rented to T. L. Wick. The land then in controversy, the “King farm ” of the lease, is “ the farm rented,” in the language of the will, to Thomas L. Wick, deceased.

There are peculiar features in this lease, such as would not be likely to appear in a contract between strangers, but well suited to the relations of mutual confidence between father and son.

The farm is leased to the son at a trifling rent, $12 50, payable yearly, so long as occupied. That this is but an inconsiderable rent, seems apparent enough from the language of the lease itself, in reference to the farm and its products. Then, on the other hand, the son is content to hold possession at the mere will of the father. The father reserves in the lease, all the coal and' timber which he may want for his own use, the hay and grain on the farm at the time it was rented, (December 1st, 1837,) and the privilege of taking the rented land in his own possession, whenever he may choose. Of this land, the children of Thomas L. Wick are still in possession, or rather the defendant, who is holding under them.

Wben it is discovered that all the lands rented by Henry Wick to his other children, and by his will devised to them respectively, in fee, and this land rented to T. L. Wick, and found in the possession of his children, is devised by the will to the same children, and so devised as at all events to be owned by them in fee simple, if they should live to.enjoy it, we find no difficulty in considering these children as special objects of the testator’s bounty, like his other children, and entitled to be so regarded in the construction of his will. And the inference is deemed not unreasonable, that with respect to the land which had been rented, he intended to deal alike with his children that were living, and the children of one who was deceased. ■ These children were of his blood,-and it was therefore with no design to withhold from them, that he said he. wished none but the kindred of his blood to enjoy his property.

Here it may be remarked that a phrase occurs in the will, and directly following that which speaks of the support and education of the children, which is in these words, “ without any further charge against said children.” Now from anything appearing throughout the will, it is difficult to perceive the application or object of that phrase. But supposing the testator, when drawing this part of the will, to have had in his contemplation the lease before referred to, wherein a small annual rent is charged on the land, then the application is not so difficult. He would naturally enpugh use the expression “ without further charge against said children,” in order to relieve them from the annual payment, if it was his understanding, that the income of the land would continue to go for their benefit. ■

Further, the testator charges in his will a small sum upon his children, to be given to these children of T. L. Wick, for their support and education. In his lifetime, he allowed the proceeds of the farm to be applied towards the support of T. L. Wick’s family. He provided that after his death the farm should go to the children, and it would seem to be reasonable, that he should design the annual proceeds to be applied towards the support of the children, rather than be converted into' money, and put into a general fund, to be afterwards distributed amongst the heirs ; and this presumption derives strength from the fact, that when the disposition of this land is distinctly in the mind of the testator, and he is intending to make a conveyance of it in fee, he does not make any other, or any arrangement in express words, for its present occupancy and use.

It is true, that by the terms of the will in reference to these children, “providing they live to legal age,” it might under other circumstances be plausibly argued, that no present interest was intended to pass. But the force of this argument is greatly awakened if not destroyed by the considerations above noticed; and further, by the testator’s use, a few lines further on, of the same expression, “ providing they live to legal age,” when it could hardly have been understood by him, as excluding the children until of age, from the benefit of the provision in their behalf. The provision is, “ and when said children arrives of age, or when my executors may think most for the advantage of said children, they (the executors) may give each of them one thousand dollars, which I will to them, providing they live to legal,age.” He thus authorizes a gift of $ 1,000 to each of them, when they arrive of age, or when the executors may think most to the advantage of the children; that is at the discretion of the executors, without reference to the age of the children, and consulting, in the exercise of this authority, the benefit of the children alone. Then follows the expression, “ which 1 will to them providing they live to legal age.” By this, he could not have designed to restrain the executors discretion till a period after the children were of age. Upon the payment of the $1,000 to each, the annual payment of the $30, directed in the will to be made for the support and education of the children, was to stop. This could have been intended barely as a provision for support and education during the minority of the children, and not as an annuity for an indefinite period after arriving at full age, or for life.

The will under consideration is very inartificially drawn, and certainly the question presented to us is not without its difficulties. But viewing the will in its various provisions, and in connection with the facts legitimately in evidence, and guided by the governing principle in the construction of a will, the intention of the testator, we have all come to the conclusion, that the legal title to this land is at present vested in the children of Thomas L. Wick, subject only to be divested, upon their death, before coming to what is termed in the will their legal age.

This question settled, and as before remarked, there is nothing left of all the errors assigned, that can have any importance in the case. We reverse the judgment of the Common Pleas, as to the single principle involved in the assignments first noticed, but not as to any of the rest.  