
    Martin v. Lapham.
    In one clause of a will testator bequeathed to M. L., a married woman, living with her husband, a specified sum of money. In a subsequent clause he provided that if M. L. should die, leaving no child of her own, then the money should be equally divided among the testator’s living children, the issue of his own body. Upon final settlement of the estate the executor had sufficient funds to pay all the legacies. In an action brought by the children of testator to enjoin the payment by the executor to M. L. of the amount of her legacy, for which she had recovered judgment against him, unless she should give security for the re-payment thereof to the then living children of testator in the event that she should die leaving no children of her own, — Held: 1. That, under the will, M. L. is entitled to the' possession of the legacy, without giving security for the re-payment thereof, in the absence of facts showing that she is about to waste or squander the legacy. 2. Such inference will not arise from the mere fact that she and her husband are residents of another state, and are pecuniarily irresponsible. (Lapham v. Martin, 33 Ohio St. 99, followed and approved.)
    
      Error to the District Court of Marion county.
    Robert Martin died in 1868, leaving a will which contained the following bequest, to wit:
    ' “ I give and bequeath to Mary L. Lapham, wife of Orson Lapham and daughter of Lavinia Williams, formerly Lavinia Green, the sum of $600. The said Mary L. Lapham was raised in my family, has always been dutiful and kind to me, and I hereby recognize her as a grand-daughter.” ....
    “ It is my will that if Mary L. Lapham shall die leaving no child of her own, then, and in that case, the sum of $600 bequeathed to her herein, shall be equally divided among my living children, the issue of my own body.”
    All debts and other claims against the estate having been paid in full, Mary L. Lapham brought suit against the executors to recover her legacy. It was claimed by the defendant in that action, that the bequest was not absolute but conditional, and that the condition had not transpired; that the plaintiff was not entitled to receive the principal sum of $600, but only the interest thereon during her life. It was finally decided in that cause by the supreme court commission, that, as the bequest over*was upon certain contingencies which might never happen, viz: the death of Mary L. Lapham leaving no child of her own, with living children of the testator surviving her, the children of the testator, if they took at all, did so by executory bequest, and not as legatees in remainder; that Mary took her legacy absolutely; and was entitled to the payment asked, and that no estate of any kind vested in the children of testator until the happening of the contingencies mentioned; and, lastly, that, if the limitation over was valid, the children, and not the executor, in the absence of a trust reposed in him, were the proper parties to a suit to protect their contingent interest, if any necessity for such action should arise. Lapham v. Martin, 33 Ohio St. 99.
    Thereupon the present action was begun by the children against Mary Lapham, in which they sought to enjoin the payment by the executor to her of the judgment recovered in the former suit, among other things, for the reason that Mrs. Lap-^ ham and her husband were insolvent and unable to respond for the repayment of the legacy, in case of the happening of the contingencies named, and that they were residents of the state of Illinois. They prayed that she be required to give security for the repayment of the legacy, and, in default thereof, that a trustee be appointed to hold, invest and manage the said sum and to pay her the income only, during life.
    A demurrer to the petition was sustained, and, the plaintiffs not asking to plead further, judgment was rendered for the defendant, and, upon proceedings in error in the district court, that judgment was affirmed. This latter judgment is now before us for review.
    
      W. B. Dmis, for plaintiff in error :
    The questions of law to be settled in this case are:
    1. Is the limitation over valid, or is it repugnant to the bequest in the first clause ?
    2. If the limitation over is valid, are the children of the testator entitled, upon the facts stated in their petition, to have security for repayment of the legacy upon the happening of the divesting contingency ?
    As to repugnancy:
    If it be once clearly established that Mrs. Lapham has an unlimited and unqualified right to the money bequeathed, then the limitation over must be rejected as repugnant. But the very question here is whether the will does give such an unqualified right. It will not do to assume that the bequest contains the intention of the testator and then reject the other clause in the same will because it qualifies the bequest. The whole will is to be construed together, and no part of it can be rejected, unless there appears to be such a total and irreconcilable repugnancy, that no legal, consistent and reasonable construction can be found to give effect to all the provisions. Pruden v. Pruden, 14 Ohio St. 257; Baxter v. Bowyer, 19 Ohio St. 490; 1 Redf. on Wills, 680, 681, § 23; Ib. 449, 451, §§ 13, 14.
    lt must be assumed that a testator means something by everything he says, and if the second clause of this will means anything, it is a limitation upon the gift in the first, clause.
    It is next to impossible to believe that if the testator meant to give to Mary L. Lapham and her heirs an unlimited estate, he would, nevertheless, have dictated this limitation, or that he would not at once see that he was restricting an absolute estate by this second clause.
    
      Tyson v. Blake, 22 N. Y. 563, is precisely in point. The limitation over is not of so much of the money as may remain undisposed of upon the contingency named, but of the entire $600; and the right of disposing of or consuming the fund is, therefore, inconsistent with the limitation. But upon the construction in Tyson v. Blake, the whole will is consistent.
    As to limitations in bequests of personalty, see 2 Redf. on Wills, 654, and notes 39,40; 2 Kent Comm. 352. The limitation was not void for remoteness. Parrish’s Heirs v. Ferris, 6 Ohio St. 563; Taylor v. Foster, 17 Ohio 166; 1 P. Wms. 663; 3 Ib. 262; 3 Paige Ch. 30. Security for repayment should be given. 2 Story Eq. §§ 603, 604, 845, 845 a, 847 and note. Fiske v. Cobb, 6 Gray, 144; Clark v. Terry, 34 Conn. 176; Williams v. Colter, 3 Jones Eq. (N. C.) 395; Tyson v. Blake, 22 N. Y. 563; Rowe v. White, 1 Greene (N. J.) 411; Howard v. Howard, Ib. 486; 2 Kent Comm. 352-354.
    
      H. T. Van Fleet, for defendant in error:
    The limitation over was void for remoteness and uncertainty. Niles v. Gray, 12 Ohio St. 320; Piatt v. Sinton, 37 Ohio St. 353. The case of Lapham v. Martin, 33 Ohio St. 99, is decisive of this.
   Longworth, J.

With the decision of the commission in the former case of Lapham v. Martm, we are entirely satisfied. It has long been settled law in Ohio that limitations over of persona] property, by way of executory bequest, are valid, and have like effect and operation as in the case of executory devises of realty. And since the decision in Niles v. Gray, 12 Ohio St. 320, followed and affirmed in Piatt v. Sinton, 37 Ohio St. 353, it cannot be doubted but that a devise or legacy, with such limitations as are contained in the will before us, operates to pass to the devisee or legatee an absolute estate in fee determinable only upon the happening of the contingencies provided for. It results from this that Mrs. Lapham owns her legacy of $600, and is entitled to the possession of it. To give her the interest only upon that sum, or the sum itself, only upon conditions not made by the testator, would be to refuse effect to his expressed intention in the will.

These plaintiffs have no vested interest whatever in this legacy, nor is it by any means certain that they ever will acquire such interest. Possibly there- may occur a contingency under which .they may become entitled to the legacy in the future, but such contingency is, after all, only a possibility imposed upon a possibility.

We do not deny that equity will protect this right, shadowy though it be, and will not permit the legatee to be guilty of waste or other acts which might operate to defraud the plaintiffs. But no such thing is alleged against her here. It surely does not follow from the fact that she is insolvent, and a resident of another state, that, therefore, she is about to waste or squander her legacy.

Perhaps in the case of a man or unmarried woman the fact of insolvency might lead to the inference that a receipt of such a legacy would be but a gift of it to creditors ; but here the charge of insolvency against Mrs. Lapham can mean nothing more than that she is pecuniarily irresponsible. Insolvency properly means inability to pay debts. It would be absurd to charge this against a married woman who cannot contract debts which she is unable to pay; seeing that it is only to the extent that she owns separate property that claims against her can be of any validity.

I may be permitted to suggest that possibly the true construction of this will is that Mrs. Lapham'should take her legacy absolutely unless in the event that she should die childless before the time of final distribution, in which case only should the children of testator receive it. I confess that I should myself be inclined to regard this construction as extremely plausible were it not for the language of Lapham v. Martin, above cited. The view, however, which we have all taken of this ease renders the discussion of this unnecessary.

Judgment affirmed.

White, J., did not sit in this case.  