First Presbyterian Church of Salem v. Tarr
| Decision Date | 01 November 1939 |
| Citation | 26 N.E.2d 597,63 Ohio App. 286 |
| Parties | FIRST PRESBYTERIAN CHURCH OF SALEM v. TARR et al. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. A devise of real estate to a religious society 'to be used as a parsonage,' but with no provision for forfeiture or reversion, conveys all of the estate the testator has therein to the devisee, and the failure of the devisee to use the property as a parsonage will not cause the title to revert to the heirs of the testator.
2. The mere statement in a will of the purpose for which property devised is to be used, will not be regarded as a condition subsequent, so as to debase the fee when the condition is broken, unless the intention of the testator is clearly shown to be otherwise.
W. O. Wallace, of Columbiana, for appellants.
Boone & Campbell and Joel Sharp, all of Salem, for appellee.
Ida L McNutt, a resident of Salem, Columbiana county, Ohio, died July 4, 1931, leaving a last will and testament which has been duly admitted to probate and record in that county.
Item three of the will is as follows: 'I give and devise to the First Presbyterian Church, of Salem, Ohio, my home known as number 125 Lincoln avenue, in the city of Salem, to be used as a parsonage; and I give to the Home for Aged Women of Salem, Ohio, the sum of two thousand dollars ($2000); and the sum of ten dollars ($10) each to my following neices and nephews: Russell Hum, of Columbiana, Ohio; Ruben Hum, of Niles, Ohio; Frank Hum of Mansfield, Ohio; Delmar Hum, of Mansfield, Ohio; Nellie Fischer of Pittsburgh, Pa.; and Grace Flickinger of Pleasant Grove, Ohio.'
By items four and five of the will testatrix gave and devised 'all of the residue of my property, personal and real, to which I may be legally or equitably entitled at the time of my decease' as therein specifically provided, no further reference being made in the will as to the home property described in item three.
Item six nominated and appointed the executor of the will provided for the substitution of another in case the named executor could not act, and granted certain powers to the appointee, having no relation to the questions under consideration in this litigation.
On or about April 21, 1932, the executor filed an application to transfer the property devised to the Presbyterian Church in accordance with the will, and on April 21, 1932, the Probate Court of Columbiana county issued its certificate for the transfer of this real estate to the First Presbyterian Church of Salem, Ohio, which certificate was filed with the recorder on April 27, 1932, and duly recorded.
The Presbyterian Church filed its petition in the Common Pleas Court of Columbiana county against the executors and all persons who are residuary legatees and devisees under the will, setting forth therein that it is a religious society located in the city of Salem; that it has never used the property devised to it as a parsonage, but has rented the same and applied the rents to the lodging of its pastor, and that it now desires to sell the property. It is further alleged that the executor has paid the debts and the specific bequests made in the will and that the estate has been duly closed and the executor discharged; that the defendant, the National City Bank of Cleveland, was appointed and is still acting as testamentary trustee, the will having given and devised two-thirds of the residuary estate to a named trustee, in trust upon the terms set forth therein.
The prayer of the petition is for the judgment and direction of the court in regard to the true construction of item three of the will and of plaintiff's rights thereunder; that the defendants be compelled to show their interest in the premises, if any, and that the same be adjudged null and void and plaintiff's title quieted against the same; and that it may have an order authorizing it to sell the premises.
The defendants, other than William J. Hum, answered, alleging that plaintiff has abandoned all intentions of using for parsonage purposes the premises described in item three of the will, and pray that the devise of the church be by proper judgment declared to be a specific conditional devise and that the court find that the church has rejected the condition of the devise; that two-thirds of the premises be by proper judgment declared to pass to the trustee bank to be administered as provided in item five of the will.
William J. Hum filed a like answer, except that he claimed the other one-third of the residuary estate as the only surviving child of John Hum, deceased.
There is no dispute as to the facts, it being conceded that at the time the will was executed and at the death of the testatrix the church had a parsonage, and further, that the church does not ever intend to use the property devised to it by item three of the will for a parsonage; and there being no claim other than that the defendants are the persons entitled if it be held that the church is not by the terms of item three devised the unconditional and absolute title in fee simple to the premises.
The Common Pleas Court held that the testatrix had devised a fee simple title to the real estate to the church; that the church, at the commencement of the action, was in possession of the real estate and that it had the legal estate in and was entitled to the possession of the same; that none of the defendants, or any of them have any estate in or are entitled to the possession of the real estate, or any part thereof, and that plaintiff ought to have its title and possession quieted as against each and every one of the defendants, and it was so ordered, adjudged and decreed, and further, that the church be authorized to sell the real estate for the best price obtainable.
Appeal on question of law is duly prosecuted to this court by all the defendants to the action.
The cardinal rule of interpretation of a will is that effect given to the intention of the testor, gathered from the four corners of the will, and arrived at by the language expressed therein. 41 Ohio Jurisprudence, 590 to 599.
Not only must we look to the language of item three itself, but as well to the residuary clause or clauses in the will of Ida L. McNutt, for the purpose of interpreting the meaning of item three, these being the only portions of the will having any bearing upon its interpretation, as we see it.
It is one of the claims of appellants 'that the language in the will creates a conditional estate with both a condition precedent and a condition subsequent.'
We see nothing in the will which creates a condition precedent to the vesting of title in the church: 69 Corpus Juris, 675, Section 1783.
It the words 'to be used as a parsonage,' contained in item three of the will, create a condition affecting the title devised to the church, which is the ultimate question to be determined, the words convey no indication that the devisee must first use the property as a parsonage before acquiring any estate or interest in it. Indeed, it would be legally impossible for the church to use the property for any purpose before the vesting of some right or interest therein, and it is not shown that any right existed in the church other than that devised by the will. It is quite clear that the will gives and devises the home of testatrix to the church before anything is said either by way of requirement or request as to the use to which the home is to be or may be used.
'So, an apparent condition attached to a gift will, when possible, be construed either as a condition subsequent or as imposing a trust and not preventing vesting or operating to cause a forfeiture if brocken.'
'As the law favors the vesting of cstates, and the courts, in construing a will, prefer conditions subsequent to conditions precedent and, in a case of doubt as to the testator's intention, will construe a condition to be subsequent rather than precedent where it is possible to do so without violating some established rule.' 69 Corpus Juris, 676, Section 1784.
The very statement 'to be used as a parsonage,' indicates continuous action for its performance, and that the time for performance is indefinite, from which it follows, necessarily, that the condition, if condition it be, is subsequent rather than precedent. 69 Corpus Juris, 676, 677, Section 1786.
Nor does the language used in this will, either expressly or by implication, devise the home of testatrix in trust to the church for charitable purposes, and the principle upon which a trust may, under certain circumstances, be executed cy pres is not applicable to the situation here. Board of Education of Van Wert v. Inhabitants of Van Wert, 18 Ohio St. 221, 98 Am.Dec. 114.
In Doan v. Vestry of Parish of Ascension, 103 Md. 662, 64 A. 314, 7 L.R.A., N.S., 1119, 115 Am.St.Rep. 379, it was held that a trust cannot exist where the same person possesses both the legal and the beneficial interest.
That a trust is created by the language used in this will can be argued only upon the theory that the...
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