Cassidy v. Hynton

• Decision Date: 07 December 1886
• Parties: CASSIDY and others v. HYNTON and others.
• Court: Ohio Supreme Court

9 N.E. 129

44 Ohio St. 530

CASSIDY and others v. HYNTON and others.

Supreme Court of Ohio.

December 7, 1886

Error to district court, Cuyahoga county.

The question in this case is as to the sufficiency of plaintiffs' amended petition. Without copying the pleading at length, its substance may be stated. On the twenty-first day of September, 1865, John Hynton, a resident of Cuyahoga county, was the owner of a parcel of 134 acres of land in that county, worth $10,000, and 147 acres in Summit county, worth $9,000; also, stock, farming utensils, and money at interest, of the value of $5,000. Elizabeth Hynton the defendant, was then his wife, and they then had four children living, viz.: Mary, aged about 21 years; Catherine about 18; John, 16; and Elizabeth, 13 years. On that day John Hynton made a will, which is as follows: ‘ Know all men by these presents, that I, John Hynton, of the township of Independence, county of Cuyahoga, and state of Ohio, being of sound mind and memory, and not under any restraint, do hereby declare and establish this my last will and testament: I bequeath to my beloved wife, Elizabeth, all my property, real and personal, to be solely under her care and management, in trust for the benefit of mine and her children. She may distribute it at any time, and in any manner, that she may think proper.’ Elizabeth Cassidy and Catherine Walsh plaintiffs, and Mary Doubler and John Hynton, defendants, are the children named above.

On the twenty-fifth of September, 1865, the testator died, leaving the wife and children named, all of whom still survive. The will having been duly proven, the widow appeared in probate court, and elected to take under the will. She was at the same time appointed administratrix with the will annexed, and gave bond as such in the sum of $1,000. No inventory of personal property was taken, nor appraisal had, nor report of any sale. On the nineteenth of October, 1886, she filed in probate court a sworn statement, alleging the payment of all debts, which the court received as a final settlement. No other settlement was ever made.

Immediately after the death of John Hynton she took possession of all the property, and took, received, and kept all the rents, income and profits, and has continued to do so, except as hereinafter stated, and claims all as her own absolutely. November 18, 1870, she sold and converted into money about $5,000 worth of the personal property; and with the proceeds, and with income and proceeds of about eight acres of timber land sold, purchased 95.34 acres of land, worth $6,197.10, which sum she paid for it. She has distributed, out of the estate, to said Elizabeth, $530; to said Catherine, $500; and to said Mary, $2,000. To said John she conveyed, without consideration in money, or otherwise, 114.96 acres of the real estate, and John conveyed it to the defendant Richey, who still occupies it. The land was worth $6,322.80. Afterwards, without valuable consideration, she conveyed to said John another tract of the land worth $6,175. The total value of all the property left by the testator was about $24,000. The debts, funeral expenses, and cost of administration did not exceed $1,000.

The said Elizabeth Hynton claims to be sole devisee and legatee of all the property; denies that she holds any part thereof in trust; refuses to give bond for the proper discharge of the trust; has not accounted in any way for her management of the trust property; and still refuses to account. At the time of said conveyance to said John, and by him to said Richey, both of them well knew all the terms and provisions of the will, and that said lands were held by said widow in trust only.

Plaintiffs pray a construction of the will; that the defendant be ordered to render full account; that she be required to give bond; that proper order be made regarding the lands conveyed to John, and the lands by him conveyed to Richey; for order that will secure preservation and ultimate distribution in equal shares of the trust property; and for full relief.

The petition was filed May 26, 1877. At the September term, 1881, of the common pleas, the case was heard, and a decree rendered for the plaintiffs, from which the defendant Elizabeth Hynton appealed to the district court. In that court a demurrer to the petition was filed, a hearing was sustained, and judgment for defendant entered. To procure a reversal of that judgment the error proceeding is prosecuted here.

MINSHALL, J., dissents.

Caskey & Calhoun , for plaintiffs in error.

Cadwell & Cadwell , for defendants in error.

BY THE COURT.

The disposition of the demurrer to the petition depends upon the construction to be given to the will of John Hynton. It is the duty of the court to ascertain the intent of the testator. If the plaintiff were entitled to any relief under the allegations of the petition, then the demurrer should have been overruled; if not, it was properly sustained. The counsel for plaintiffs in error claim that under the provisions of the will Elizabeth Hynton, in her own right took no interest in her husband's estate; that under the law she was entitled to dower in the lands to a year's support, and to a distributive share of the personalty, but as to all the remainder of the estate she took it as a devisee, in trust, for the equal and impartial benefit of all the children of herself and her husband, John Hynton. The position of counsel for defendant in error, Elizabeth Hynton, if we understand them correctly, is that under the will she took the entire estate in trust for the children, but that the trust was wholly unlimited and unrestrained, and gave her...