Anderson v. Realty Co.

• Decision Date: 10 November 1908
• Docket Number: 10689
• Citation: 79 Ohio St. 23,86 N.E. 644
• Parties: Anderson v. The United Realty Co. Et Al.
• Court: Ohio Supreme Court

86 N.E. 644

79 Ohio St. 23

Anderson v. The United Realty Co. Et Al.

No. 10689

Supreme Court of Ohio

November 10, 1908

Removal of suit from state to federal court - Party procures withdrawal of petition - And prosecutes action in state court - Under agreement - Objection to jurisdiction cannot be made when - Devise to son, and if he dies without lineal descendants, etc., then over - Not sufficient to create estate in lineal descendants - Son takes a fee defeasible - Law of wills.

1. Upon the filing in a state court of the requisite petition and bond for the removal of the suit to a federal court, the state court is divested of jurisdiction; but a party who procures the withdrawal of the petition and bond, by the party who filed it, before any action in the federal court and then dismisses his action in the state court as to the party who filed the petition for removal, and by agreement with the remaining parties prosecutes the suit in the state court, cannot be heard, after judgment against him, to assert that the jurisdiction of the state court had not been restored.

2. Where, in a will, there is a devise to a son, and if he dies without lineal descendants, living at the time of his decease, then over, these words are not, by themselves without assistance from other parts of the will, sufficient to create an estate by implication in the lineal descendants but the son takes a fee defeasible upon his death without lineal descendants, living at the time of his decease, and in the event of lineal descendants living at the time of the son's decease his fee becomes absolute and such descendants have no interest under the will as against his grantee.

The facts are stated in the opinion.

Mr. Rhea P. Cary; Mr. C. A. Thatcher and Mr. C. H. Trimble, for plaintiff in error.

Under the provision of the will that "If either of my sons die without lineal descendants the one surviving shall take his estate above bequeathed, and if the survivor die without lineal descendants, then" to his collateral relatives the testator intended that if the survivor of the sons should die leaving lineal descendants they should take the remainder. Parish's Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St. 322; Shaw v. Hoard, 18 Ohio St. 228; Carter v. Reddish, 32 Ohio St. 1.

Reading the will under consideration, in the light of this rule, the question is, What is the quantum and character of the estate which the testator intended that his children should take in the realty specifically devised to them? The English rule that a devise to A. and his heirs, followed by a devise over in case A. die without issue will be cut down to fee tail in A. and the word "heirs" construed as meaning issue, is owing to the fact that in that country the words "dying without issue" are construed as meaning an indefinite failure of issue. 2 Jar. on Wills, 301.

In this state, however, it is well settled that the words "dying without issue," import dying without issue living at the death of the prior devisee. Parish's Heirs v. Ferris, 6 Ohio St. 563; Niles v. Gray, 12 Ohio St. 320.

A very strong implication arises, that the testator intended by the words, "and to their heirs" (found in the habendum clause), to give to his children the estate of inheritance in fee simple in the premises devised, which should render them legally capable of controlling and disposing of it. Piatt v. Sinton, 37 Ohio St. 353; Collins v. Collins, 40 Ohio St. 353.

Where, by one clause in the will, property is devised or bequeathed by words prima facie importing absolute estate, and by a subsequent clause is given in remainder to another person, the first devisee or legatee takes only a life estate and the limitation over is valid. Baxter v. Bowyer, 19 Ohio St. 490.

In this case the fact that the testator had granted to the first taker a power to dispose of the estate, shows that he did not intend to vest a fee simple in the first taker, as in such case it was useless to mention the power of disposition, because that existed before. Therefore the grant of the power of disposition is an evidence that the first taker was to have but a life estate. Home v. Lippardt, 70 Ohio St. 261; Shaw v. Hoard, 18 Ohio St. 228.

An executory devise or bequest cannot be prevented or destroyed by an alteration whatsoever in the estate, out of which or subsequently to which it is limited. The executory interest is wholly exempted from the power of the first devisee or taker. 4 Kent's Com., 270.

A valid executory devise cannot be defeated at the will and pleasure of the first taker. This is a settled principle. It cannot be barred by a common recovery, or by any other mode of alienation. Pells v. Brown, Cro. Jac., 590; Jackson v. Bull, 10 Johns., 19.

Every executory devise is a perpetuity, as far as it goes. That is to say, it is an estate inalienable, though all mankind join in the conveyance. Scatterwood v. Edge, 1 Salk., 229; Jackson v. Robins, 16 Johns., 589; Burleigh v. Clough, 52 N. H., 273.

It was held to be essential to a good, executory devise, that the first takers should have no power to dispose of the subject devised. If, therefore, the first taker had power by grant from the testator, to dispose of an executory devise, the power defeated the whole object of such devises, and they were held to make them ineffective, though the power was not executed.

The will vested the estate in the first takers, that is the sons, in general terms, without using words of inheritance sufficient to specifically and absolutely create a fee, and that it is evident that it was the intention of the testator that his collateral kindred should take in certain events in some capacity. The only way to construe the will so as to make it effectual as to them, is to give them remainders contingent upon his sons dying without issue, and when we remember that the general rule is, that future interests will be construed, where possible as remainders rather than as executory devises, it seems to us there is no escape from the conclusion that such a construction must be put upon the will. If it is construed as creating contingent remainders in his collateral kindred, this necessarily implies a life estate in the first taker, with remainder to his sons or other lineal descendants.

If only a life estate is granted, a power of disposition in the life tenant does not invalidate a remainder over. Kelley v. Meins, 135 Mass. 234; Larned v. Bridge, 17 Pick., 339; Burleigh v. Clough, 52 N. H., 273.

Messrs. King, Tracy, Chapman & Welles; Mr. George A. Bassett; Mr. Oliver B. Snider; Mr. Rathbun Fuller; Mr. Elmer E. Davis; Messrs. Rhoades & Rhoades and Mr. Clayton W. Everett, for defendants in error.

Where parties voluntarily and without objection submit their controversy to a court having jurisdiction of the subject-matter and the cause proceeds therein regularly to trial and final judgment, they will be held to have waived their right to object to the jurisdiction of that court, even though a petition and bond had been duly filed to remove the case from the state to the federal court. Forsythe v. Hammond, 166 U.S. 506; Estate of Crawford, 68 Ohio St. 58; Jones v. Booth, 38 Ohio St. 218; Collins v. Davis, 33 Ohio St. 567.

We respectfully submit that upon the admitted facts, it is clear that the right to remove the action from the state to the federal jurisdiction, was effectually and for all time waived. Pollock v. Cohen, 32 Ohio St. 514.

The doctrine announced by the Supreme Court of Ohio, in Pollock v. Cohen, 32 Ohio St. 514, that the right of removal is personal and may be waived, has been expressly announced by the United States Supreme Court as correct. Insurance Co. v. Morse, 87 U.S. 445; Barron v. Burnside, 121 U.S. 186.

It has been held that the right may be waived by conduct as well as by stipulation. Bank v. Smith, 13 Blatchf., 225.

Whatever rights a party may acquire upon the filing of the bond and petition, it could waive, and it certainly, under the circumstances of this case, must be considered as having waived them. A party could not go to trial upon the merits, take its chances upon the result, and afterward question the jurisdiction of the court. Insurance Co. v. Curtis, 32 Mich. 402.

Under Ohio statutes and decisions a fee simple was devised to the sons of Henry Anderson subject to defeasance if they died without children. Section 5970, Revised Statutes.

Under statutes similar to the above, decisions have been made to the effect that unless it clearly appears that a less estate was intended a fee simple will be presumed. May v. San Antonio, 83 Tex. 503; Snyder v. Baer, 144 Pa. St., 278; Simonds v. Simonds, 168 Mass. 144; Harris v. Dyer, 18 R. I., 543.

But the case most similar to the one at bar and to which we ask special attention is the case of Devecmon v. Shaw, 70 Md. 219.

Where there is a devise in fee, with a provision in the will that in case the devisee should die without leaving any legitimate heirs of her body, then the estate should go over to persons named, the fee taken by the first devisee is determinable only on the contingency of her dying without leaving such heirs living at the time of her death. Lodge v. Darrow, 16 Ohio Dec., 120; Niles v. Gray, 12 Ohio St. 320; Piatt v. Sinton, 37 Ohio St. 353.

We submit that the devise to the sons in the Anderson will comes strictly within Niles v. Gray, 12 Ohio St. 320, and Piatt v. Sinton, 37 Ohio St. 353. To the same effect are the following cases: Taylor v. Foster's Admr., 17 Ohio St. 166; Collins v. Collins, 40 Ohio St. 353; Durfee v. McNeil, 58 Ohio St. 238.

All of said five cases are authorities that such conditional limitations over do not show an intention to devise less than a defeasible fee to the primary...