
    Bolton v. Bank.
    
      Wills—Construction of—How equitable estates vest and descend— Trust estates.
    
    1. A devise of real estate to trustees in trust to collect the rents and. pay a definite sum annually to the widow of the testator during her life, and to divide the residue equally among his children “or their heirs;” and, at the death of his widow, to convey an equal part of his lands to each of his children “ or their heirs,” vests an equitable estate in each of his children at the death of the testator, in the absence of a clear intention to postpone the vesting to some later time.
    Equitable estates vest and descend as legal estates. 2.
    (Decided April 25, 1893.)
    
      Error to the Circuit Court of Cuyahoga county.
    The original suit was commenced in the common pleas of Cuyahoga county, and appealed to the circuit court. It ■was brought by the trustees under the will of Thomas Bolton, deceased, against the beneficiaries and those claiming under them for a construction of the instrument. The testator died in 1871, and his estate was settled by his executors. The provision of the will requiring a construction is the one creating and defining the trust, and is as follows:
    “3d. I give and devise to Moses Kelly, Franklin T. . Backus and George H. Russell, and to the survivors of them, all the real estate of which I may die seized or possessed, wherever situate, in trust and for the following use: All that piece or parcel of land, with the appurtenances, lying between Euclid and Cedar streets in said village and now occupied as my homestead, to the sole and exclusive use and benefit of n^ beloved wife, Emeline Bolton, if she survives me, during her natural life and so long as she remains unmarried and my widow, and so long as she shall live and remain unmarried and my widow, to pay her twenty-five hundred dollars per year, at such times as she may need the same, out of the first rents and profits of the restand residue of my said real estate; and from the balance of said rents, to pay the necessary expense of executing said trust; to keep the said real estate in repair; to pay all taxes and assessments levied or assessed on all of said real estate; and to pay the balance semi-annually to my five children or their heirs, considering and treating them all as of full blood, and not half blood, to-wit: T. Kelly Bolton, Elizabeth C. Bolton, Festus C. Bolton, James H. Bolton and Charles Chester Bolton, share and share alike; and at the death or marriage of my said wife, to deed to said five children ’or their heirs (and in ascertaining who their respective heirs is or are they are to be considered and held as of full blood) forever, all and singular, said real estate so held in trust by said Kelley, Backus and Russell.”
    
      The testator left surviving him his widow, Emeline Bolton, and his five children named in the will. P'estusC. Bolton has since died insolvent, leaving children, and Thomas K. Bolton has also died leaving children. Festus C., before his death, executed a mortgage upon his interest in his father’s estate under the will to two banks to secure his indebtedness to them. Also on February 13, 1871, all the children of the testator entered into a written agreement with the widow Emeline, by which they agreed that she should have $1,500 annually in addition to the allowance made in the will. Upon this state of facts the trustees asked the instruction and advice of the court upon a series of questions, all of which arise out of the question as to the nature of the estate which the children took in the lands devised in trust by the will of their father. The answer to these questions were, so far as considered material, as follows:
    “1. Said children of the testator took upon his death in the lands so devised in trust an equitable remainder in fee, coupled with an equitable life estate in the surplus rents and income therefrom, aftei satisfying the expenses of the trust and the provision made in said will in favor of the widow accruing during the widowhood of said Emeline. 2. The interest so devised to said children by way of equitable remainder vested in them at the death of said testator and became at once alienable by them, so that upon the death of said Emeline the plaintiffs will be bound to convey the same to the alienees of such children instead of their heirs. '3. The children of the testator took at his. death a vested remainder in fee in sgid lands, and also a vested interest in the income therefrom accruing during the widowhood of said Emeline, which was likewise alienable by them. 4. The creditors of said children may subject their interests in said lands to the payment of their debts. 5. Income accruing since the death of said Festus may be subjected by his creditors to the payment of his debts, and, except as the same may be so subjected or was otherwise disposed of by said Festus during his'lifetime, is payable to his heirs. 7 and 8. Said writing delivered to the widow was based upon a valid consideration, and is to be treated as a valid assignment to her binding the income after the death of said Thomas K. and Festus C., the sum therein mentioned is still payable to her out of their respective shares of said income, and is prior to the claims of said judgment creditors to such income under their assignment of said Festus C. Bolton, and under the provisions of said will and said written assignment the surviving trustee should pay from the income derived from such trust to the said Emeline Bolton the sum of four thousand dollars per annum from and after the death of said testator and during her widowhood.
    All of the defendants, except the banks, excepted to the construction of the court and asked for a new trial, which was overruled, and judgment entered in accordance with the foregoing constructions; and error is now prosecuted here to reverse the judgment of the circuit court.
    
      Ranneys & McKinney, for plaintiff in error.
    
      Henderson, Kline <Sf Tolies, Boynton, Hale & Horr, and Samuel E. Williamson, for defendant in error.
   By the Court:

We see no error in the construction placed on the will of the testator, nor in the instructions given the trustees for the administration of the trust. It is the settled rule of this court to construe all devises and bequests as vesting in the devisee or legatee at the death of the testator, unless the intention of the testator to postpone the vesting to some future time is clearly indicated in the will. The fact that the devise to the children is to them “or their heirs,” does not make it contingent—the words “or their heirs,” being regarded as words of limitation, and not as the substitution of a new class of beneficiaries, taking as purchasers from the testator. Linton v. Laycock, 33 Ohio St. 128; Brasher v. Marsh, 15 Ohio St’ 103.

The only distinction between this case and the previous ones, is, that in this case the property is devised to trustees who are to carry out the trusts and make conveyances as directed in the will, so that the estates of the devisees are equitable and not legal. But this does not affect the question, for it is well settled that equitable estates vest and descend as legal estates. 2 Washburn on Real Prop. 5th Ed. 530-531-569. Doe v. Considine, 6 Wallace, 458; McArthur v. Scott, 113 U. S. 340.

Judgment affirmed.  