Phillips v. Herron

• Decision Date: 15 December 1896
• Citation: 45 N.E. 720,55 Ohio St. 478
• Parties: PHILLIPS et al. v. HERRON et al.
• Court: Ohio Supreme Court

45 N.E. 720

55 Ohio St. 478

PHILLIPS et al. v. HERRON et al.

Supreme Court of Ohio.

December 15, 1896

Error to superior court of Cincinnati.

Action by Ovid P. Phillips and others against John W. Herron and others to construe a will. From the judgment, plaintiffs bring error. Affirmed.

This suit concerns real estate only, and involves the right and duty of the trustees under the will of Thomas Philips deceased, to carry out all of its terms, including the following: ‘ (3) My said trustees shall, from time to time, pay over one-third of the net income arising from the said two-thirds of my estate to my son, George, during his natural life, and at his death to his children, or the survivors of them, in equal shares during the natural life of each of them. In the case of the death of either of the children of my son, George, without lawful issue, the share of such child shall go to his brothers and sisters during their lives, and to the issue, if any, in fee, of any that may be dead; and, in case of the death of all of said children without lawful issue, then the said shares shall be held by said trustees in trust for the same purposes as hereinafter provided for the remaining two-thirds; but in case of the death of either of the children of my son George, leaving issue, such issue shall receive, as owner in fee, the share of said trust fund of which said children had the income.’ The testator died in March, 1870. His son George, died in March, 1873, leaving, surviving him, five children the youngest of whom, Maurice Dudley Phillips, was born in September, 1870. A statement of other facts would only impose the duty of showing that they are immaterial.

Syllabus by the Court

1. The act to restrict the entailment of real estate (Rev. St. § 4200) supersedes the rule of the common law upon the subject.

2. It inhibits only devises to persons who are in fact more remote than the immediate issue of persons in being at the death of the testator.

3. Within the meaning of the act, a child in utero at the testator's death is in being.

Thomas McDougall and Alfred Cassatt, for plaintiffs in error.

W. C. Herron and Wm. Worthington, for defendants in error.

SHAUCK, J. (after stating the facts).

It is admitted by all concerned that the trustees are seeking to pursue strictly the terms of their trust, as defined in the will of Thomas Phillips, if the foregoing provision of that will is valid in all respects. But the plaintiffs in error contend that, in so far as it attempts to devise an estate to the great grandchildren of the testator it is void, because in violation of the laws of the state to restrict the entailment of real estate, and that, in consequence thereof, the estate remains absolute in the issue of the first donee in tail. Our statute upon the subject (Rev. St. § 4200), passed December 17, 1811 (Swan & C. 550), is as follows: ‘ No estate in fee...