Holden v. Circleville Light & Power Co., 2449.

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Citation: 216 F. 490
• Docket Number: 2449.
• Parties: HOLDEN v. CIRCLEVILLE LIGHT & POWER CO.
• Decision Date: 08 June 1914

216 F. 490

HOLDEN
v.
CIRCLEVILLE LIGHT & POWER CO.

No. 2449.

United States Court of Appeals, Sixth Circuit.

June 8, 1914

[216 F. 491] [Copyrighted Material Omitted] [216 F. 492]

C. B. Matthews, of Cincinnati, Ohio, for plaintiff in error.

E. L. De Witt, of Columbus, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN, Circuit Judge.

This action was brought to recover possession of a six-ninths interest in certain premises in Circleville, Ohio, of which plaintiff claimed to be the owner in fee. The case was tried without a jury, and judgment rendered for defendant. The testimony has not been sent up. From the findings of fact made by the trial judge we condense the following as a sufficient statement for present purposes:

Isaac Darst died testate in the year 1844, leaving a widow, and without issue, except one daughter, who was then married. His will, which was duly probated, after providing for the application to the payment of his debts of his moneys and credits, such part of his personal effects as his widow should not wish to retain, and, so far as necessary, his least productive real estate (which the executor was authorized to sell), contained the following provision:

'I further will and bequeath to my wife, Martha Darst, all the rest and residue of my estate, real and personal, to be used and kept by her during her lifetime, and

'I further will and direct that after the death of my wife Martha, all the property then remaining shall constitute a fund for the support and maintenance of my daughter, Ann Bierce, and her children during her life, and at the death of my said daughter Ann the same shall be equally divided between her children. I would further provide and direct that should my daughter Ann become a widow or should her husband, W. W. Bierce, by sickness or otherwise become disabled from doing business and supporting his family during the lifetime of my wife, she, my said daughter, shall have the use and occupancy of the house she now occupies with the privilege of a small garden on lot No. 11 in the town of Circleville, free of charge.'

Then followed a provision that, in the event of the death of his daughter without living children, his property 'shall then be divided [216 F. 493] between' certain of the testator's nieces. The widow died in 1855. In December 1860, the daughter, who then had nine living children, joined with her husband in conveying by warranty deed to the Circleville Gas, Light & Coke Company (hereafter called the Coke Company) the entire of the premises in question, together with other property.

In February, 1864 (more than three years after the conveyance to the Coke Company), Mrs. Bierce applied to the appropriate common pleas court of Ohio by petition, alleging the necessity of selling certain other real estate 'in order to support said petitioner and her children,' stating that 'doubts have arisen as to whether your petitioner is entitled to a fee simple or life estate in the said lands, and your petitioner, being desirous of selling said lands, is not able to do so on account of apprehension in the minds of some persons as to the title,' praying a construction of the will, and a determination 'whether she may under any circumstances, and, if so, under what circumstances, sell said lands in fee simple, and that the court may order the same to be sold. ' Plaintiff formally consented to the sale asked for. Apparently in connection with this proceeding, plaintiff and another of Mrs. Bierce's children voluntarily quitclaimed to the Coke Company all their interest in the premises here in controversy. The common pleas court held that the will authorized 'petitioner, as trustee for herself and her children, and in the event of its being necessary to the support of herself and children, to sell said premises,' found that such sale was necessary for the purpose stated, and accordingly directed petitioner and her husband to make the sale.

Proceedings to review this judgment were taken in 1879, when the youngest of Mrs. Bierce's children attained majority. The Supreme Court of Ohio affirmed the judgment of the common pleas court, holding that the 'fund' composed of the property remaining at the widow's death was 'charged with the support and maintenance of Ann and her children as its primary object,' and that 'if the income proved insufficient the principal could be resorted to for proper support. ' Bierce v. Bierce, 41 Ohio St. 241.

Mrs. Bierce died in 1901, her husband having died in 1893. In 1909 the six children who had not quitclaimed to the Coke Company in 1863 and 1864, quitclaimed all their interest in the premises in controversy to the plaintiff, who thereupon instituted this suit against defendant in error, which had, in 1891, succeeded by purchase to the interests of the Coke Company.

Plaintiff contends that Mrs. Bierce took at her mother's death only a life estate in the property then remaining, with remainder in fee to her children, and that her deed to the Coke Company thus merely conveyed her life estate, which terminated in 1901. Defendant contends that the property remaining at the death of the testator's widow constituted a trust fund, of which, not only the income, but the principal, so far as necessary, was charged with the support and maintenance of Mrs. Bierce and her children (including the education of the children) during the lifetime of Mrs. Bierce, that the latter was made trustee of this fund, with power to sell the real estate belonging thereto, so far as necessary, for such support and maintenance, that necessity for such sale existed, and that the title accordingly passed thereunder. [216 F. 494]

The decision in Bierce v. Bierce is invoked as an adjudication of defendant's construction of the will. Plaintiff denies the binding effect of this decision, and insists that, even if it be followed, plaintiff is still entitled to recover, because the sale here in question was not, as in Bierce v. Bierce, under order of court. That decision, as applied to the controversy before us, determined only that the principal of, as well as the income from, the fund composed of the property remaining at Mrs. Darst's death was charged with the support and maintenance of Mrs. Bierce and her children. It did not determine that Mrs. Bierce was the trustee of this fund, with power to dispose of its principal without previous authority of court; for, although there are expressions in the opinion smacking of this view, not only was that question not involved, because the lower court had authorized the conveyance in question, but the proposition is not mentioned in the headnotes, which, under the rule in Ohio, alone expressed the actual decision of the court.

Conceding that the decision in Bierce v. Bierce is not, strictly peaking, res judicata in defendant's favor, for the reason that neither it nor its property was before the court, yet, if that decision expresses the settled law of the state, it may be invoked by defendant in this cause as a rule of property; for, although pronounced after the sale by Mrs. Bierce to the Coke Company, it was rendered before the purchase from that company by defendant, who will be presumed to have bought in reliance upon it. We find nothing in the Ohio decisions which should cause us to reject the decision as stating the settled law of the state. But, regardless of whether or not that decision created a rule of property, and regardless of whether made before the rights here involved accrued, it being the decision of the highest court of the state in which the lands are situated, we should lean to an agreement with it if the question is balanced with doubt. Kuhn v. Fairmount Coal Co., 215 U.S. 345, 360, 30 Sup.Ct. 140, 54 L.Ed. 228; Messinger v. Anderson, 225 U.S. 436, 445, 32 Sup.Ct. 739, 56 L.Ed. 1152. And see Rowe v. Hill, 215 F. 518...