Dungan v. Kline

• Decision Date: 18 January 1910
• Docket Number: 11433
• Citation: 81 Ohio St. 371,90 N.E. 938
• Parties: Dungan v. Kline Et Al.
• Court: Ohio Supreme Court

90 N.E. 938

81 Ohio St. 371

Dungan v. Kline Et Al.

No. 11433

Supreme Court of Ohio

January 18, 1910

Entailments - Section 4200, Revised Statutes - Issue of donee in tail - No interest in lands entailed, when.

Under Section 4200, Revised Statutes, the issue of a donee in tail during the life of such donee, has no estate or interest in the lands entailed which he can alienate.

On October 27, 1906, Etta Kline commenced an action in the court of common pleas of Pickaway county against the plaintiff in error, Harriet Dungan and others, asking for the partition of certain real estate in her petition described. Thereafter to-wit: on November 22, 1906, Adolph G. Wilson also brought suit in said court of common pleas against said Harriet Dungan and others, asking partition of the same lands. On motion these cases were consolidated and tried as one case. The lands of which partition was asked consisted of three tracts, two of which, by the will of Titus Dungan, had been devised to "Elizabeth Wilson and the heirs of her body," and the other tract had been devised to said "Elizabeth Wilson and the heirs of her body" by one Mary Ann Kirkendall. The devisors Titus Dungan and Mary Ann Kirkendall both died prior to June 18, 1883, and the will of each had been duly admitted to probate prior to that time. The devisee Elizabeth Wilson had seven children, among whom were two sons, William T. and George H. Wilson. William T Wilson died on January 16, 1887, his mother Elizabeth Wilson surviving him. She died October 27, 1906. On July 4, 1878, during the lifetime of his mother, William T Wilson deeded to one George Dungan an undivided one-seventh interest in the premises which had been devised to Elizabeth Wilson and the heirs of her body, and thereafter said George Dungan deeded the same to the plaintiff in error, Harriet Dungan. On June 18, 1883, George H. Wilson, his mother being then in full life, also deeded an undivided one-seventh interest in said lands to George Dungan, which interest was subsequently deeded by said George Dungan to one John Schleyer and by the latter to Harriet Dungan, the plaintiff in error. George H. Wilson died in October, 1896, ten years prior to the death of his mother Elizabeth Wilson. The deeds of William T. and George H. Wilson, although containing no covenants of general warranty, contained recitals that would perhaps estop each of them, if living, from asserting title to the property therein described. The controversy in this case is between the children of William T. and George H. Wilson on the one side, and Harriet Dungan the plaintiff in error on the other side. The children of William T. and George H. Wilson claim to be the owners of, and entitled to such interest in the real estate to be partitioned, as would have descended to their fathers William T. and George H. Wilson respectively, if they had survived their mother Elizabeth Wilson, the first donee in tail. Harriet Dungan, plaintiff in error, claims title to the same premises under and by virtue of the alleged conveyances made as aforesaid by said William T. and George H. Wilson in their lifetime, and she further contends that the children of the said William T. and George H. Wilson, because of the recitals in said conveyances, are now estopped from claiming any interest in or title to the premises sought to be partitioned. In both the court of common pleas and the circuit court--to which latter court the case was taken on appeal--this claim of Harriet Dungan was determined against her. She now prosecutes error to this court asking a reversal of the judgment of the circuit court.

Mr. Clarence Curtain and Mr. E. A. Brown, for plaintiff in error.

It can not be presumed that the testators intended to adopt the rules of the common law for the construction of their wills and thereby postpone the vesting of the fee simple title in the issue of Elizabeth N. Wilson until the time of her death. The only presumption that can be indulged is that the testators by devising to Elizabeth N. Wilson an estate in fee tail intended thereby that such estate should "be and remain an absolute estate in fee simple to" her "issue." Phillips v. Herron, 55 Ohio St. 489.

We think our supreme court in Pollock v. Speidel, 27 Ohio St 86, has given to Section 4200 the construction for which we contend.

In New York estates tail have been abolished entirely and converted into estates in fee simple in the hands of the first taker, while in Ohio the estate is preserved as an estate tail in the hands of the first taker, but vests a fee simple in his issue. Van Rensselaer v. Kearney, 11 How., 325.

It would seem, therefore, that the grandchildren of Elizabeth N. Wilson are by virtue of the statute prohibited from claiming any interest in the estate in controversy from either Titus Dungan or Mary Ann Kirkendall; if they are entitled to any interest in said estate it must be by direct descent from their respective fathers; to hold otherwise, would, as we have already seen, be obnoxious to the plain language of Section 4200.

If, therefore, George H. Wilson and William T. Wilson, if now living, would be estopped by their deeds, their children, defendants in error in this case, are bound by the same estoppel. That they would be estopped, we think, is settled by this and other courts. Magruder v. Esmay, 35 Ohio St. 221; Van Rensselaer v. Kearney, 11 How., 325.

That the language contained in the deeds in question in this case is sufficient to create an estoppel is supported by the following cases decided in other states than Ohio: Bridge & Terminal Railway Co. v. Whitney, 99 N.W. 530; Wells v. Steckelberg, 72 N.W. 866; Hagensick v. Castor, 73 N.W. 932; Lindsay v. Freeman, 18 S.W. 727; Scates v. Fohn, 59 S.W. 838; Garrett v. Christopher, 12 S.W. 67; Balch v. Arnold, 59 Pac. Rep., 436; Habig v. Dodge, 25 N.E. 182.

Mr. Barton Walters; Mr. John P. Phillips; Mr. Charles H. May and Mr. James I. Boulger, for defendants in error.

A careful analysis of Section 4200 will show that its object and meaning have been wholly misconceived by counsel for plaintiff in error and that no view of it can be taken which will in any way aid their contention. At the outset it must be noted that this section is twofold in its character. On the one hand it is designed to prevent perpetuities, and on the other to restrict the entailment of estates to the issue (not immediate issue) of the first donee in tail.

It will be noted that in their argument counsel seem wholly to ignore the presence of the word "descendants" in this statute. Turley v. Turley, 11 Ohio St. 173; McArthur v. Scott, 113 U.S. 340.

We very much doubt if it can be plausibly urged that estates tail per se infringe the rule against remoteness; for, it is remoteness rather than perpetuities that are dispensed with under the rule against perpetuities, (Gray on Rule Against Perpetuities, Sec. 91) because the rule at common law was only directed against future "contingent interests" and not against vested interests.

For the extent to which remoteness is tolerated under the Ohio statute see Gibson v. McNeely, 11 Ohio St. 131.

It will be noted that the word "immediate" does not precede "issue" in the second clause of Section 4200, and this is a very significant fact when we consider that in the same section of the statutes this word is used to modify "issue" when the latter word is used in what we regard as an entirely different connection. There must have been some reason for its omission, and we think that it was intended that issue should, where it appears in the last clause, include lineal descendants indefinitely. It should really be treated as synonymous with the words heirs of the body. Holland v. Adams, 3 Gray, 193; Weybright v. Powell, 39 A. 421; Hertz v. Abrahams, 36 S. E. Rep., 409; 11 Am. & Eng. Ency. Law (1 ed.), 869; McCann v. McCann, 80 Am.St. 846; 2 Jarman on Wills, 636; Turley v. Turley, 11 Ohio St. 179; Adams v. Law, 17 How., 421; Dexter v. Inches, 147 Mass. 324.

To show that this is the view of the courts of Ohio we need only to refer to the case of King's Heirs v. King's Admr., 12 Ohio 390.

In Harkness v. Corning, 24 Ohio St. 416, the court in effect hold that the estate tail is not enlarged into an absolute estate in fee simple until the termination of the interest of the first donee in tail. Richardson v. Stockyards Co., 8 N. P., 219; Pollock v. Speidel, 17 Ohio St. 447, 27 Ohio St. 94.

It must not be forgotten that the statute de donis did not at common law grant the estate, but it did create the fee tail; that is to say, while the donor carved out a certain estate, the statute gave it its attributes. Instead of a conditional fee it became a fee tail, and the first donee took as purchaser and all the others by descent. The donor gave or granted nothing but a fee tail, and that to no one but the first donee; then the statute directed the manner it should go. Pollock v. Speidel, 17 Ohio St. 449; Perry v. Kline, 12 Cush., 127; Darling v. Hippel, 12 O. C. D., 754, 60 Ohio St. 591; Cruise's Digest (3 Am. ed.), 68; Williams on Real Property, *522; Washburn on Real Property, Section 198.

The whole question has been decided by the supreme court of Connecticut under a statute identically similar with the statute in question here. In Harkness v. Corning, supra, 426, it is said that the Ohio act was copied substantially from a statute of Connecticut passed in 1784. Dart v. Dart, 7 Conn. 250.

In addition to all this we also claim that the only interest which it might be possible to urge existed in the children of Elizabeth Wilson during her lifetime was a contingent remainder. No title was to vest in them if they failed to survive their mother. The remainder comes within Fearne's fourth clause of Contingent Remainders. 22...