(Montgomery County Common Pleas)

#### ISAAC H. KIERSTED et al. v. J. M. SMITH et al.

(Transferred by statute from Superior Court.)

In construing a will, words should be construed in their ordinary meaning and usual signification; the whole will should be construed as a whole; equitable words should be given their technical meaning; the law favors the vesting of estates. All these rules are subject to the application of the broader rule that the clear meaning of the *will,*showing the clear intent of the testator, must not be negatived or set aside.

The words “set off” and “partition ” when the respective devisees arrive at age, u^ed-in a will, do not necessarily mean a division of the fee simple or inheritance estate between fee simple or inheritable estate between for such devisees if it appears, taking the whole will together, that such was the intention of the testator.

It does not follow, from the use of the word “receive” in the will, that the devisees are given an entire estate under sec. 5970, R. S., which provides that every devise of lands, tenements or hereditaments in any will hereafter made shall be construed to convey all the estate of' the divisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate. The last clause of this section clearly shows that the section does not necessarily mean that the whole estate must be devised to the first taker, unless the intention of the testator is clearly . shown.

Unless some positive rule of law or enactments of statutes should require it, the court will construe a will so as to follow former constructions by courts and interested parties in the administration of an estate.

The rule in Shelley’-s case is not a rule of construction, but a rule of property.

A testator may use the word “heir,” without its usual legal sense, or if the plain intention nianifested in the will shows that it was not employed in its usual legal sense, but with words of explanation showing the manifest intent of the testator, it can be made a word off .purchase.

If, where the word “heir” is used, there besuperadded words of limitation, establishing a new succession, the first donee or devisee would take but a life estate.

The expressed intention of the testator* will fix the meaning of the_ word “heir.”

The rule in Shelley’s case" as applied to wills was abrogated by statute in Ohio, in 1840, sec. 5968 R. S. But even before the passage off this statute, it was held inapplicable to defeat the clearly expressed intention of the testator.

1 he rule cannot be appealed to assist in ascertaining the intention of the testator.

The rule that such a construction will be-favored as will contribute to the immediate vesting of an estate will not be applied so as. to defeat the intention of the testator.

Heirs presumptive or apparent, although they have no vested interest in trust property,, have rights that should be protected by the courts, and they can be heard as exceptors, to the proposed termination of the trust if their rigts under the will are thereby .affected.

A trustee under a will has no right to terminate the trust created by the will, with the consent of the *cestui que trust,*if the rights off third parties under the will are thereby impaired-

Brown, J.

In the matter of the trusteeship under the-will of George W. Smith, deceased, Isaac H„ Kiersted, trustee.

The trustee-filed a final report April 11, 1900,. *379in which he charges himself with the principal fund of $24,085.05, and asks credit for $6,125.65,- leaving the balance of the principal fund $14,430.27. The trustee states that the purposes of his trust have been fully performed, and that the *cestui que trust,*Sophia C. Kiersted and Louisa M. Fletcher, are both desirous that the trust be terminated, that each receive their respective interest, and are now in full possession of the corpus of said trust, and asks for a termination of the trusteeship.

Exceptions to this final report and account are filed by Lida Manning Smith, a defendant in this cause, who was a son of George W. Smith, and a brother of Sophia C. Kiersted and Louisa M. Fletcher, for whom a trust was created by the terms of the last will and testament of said George W. Smith, deceased.

Item 10 of said will provides as follows:.

> “The residue of my real estate and turnpike stocks I declare to be set off to them or either of them by my trustees on their arrival at age. But to be still held in trust after their arrival at age and said partition between them, the rents and profits only to be paid to them or either of them according to their respective shares during their lives with the fee simple to the heirs of said daughters to be divided equally as above.”

A trust fund was created by the sales of certain property in this cause, and a trustee appointed, Mr- Kiersted being the last one. The fund was managed satisfactorily, and there are no exceptions to the formal accounting. Mr. Kiersted was appointed April 3. 1884.

After the death of the testator, George W. Smith, a laughter was born to him, who, under the terms of the will, became entitled to participate. in the trust. This daughter, Mrs. Annie E. Sheeley. died in 1893, without children, having received the income during her life, and her interest in the principal fund was divided among her heirs, agreeable to the terms of said George W. Smith’s will, James Manning Smith, the father of Miss Smith receiving his proper share.

Miss Smith avers that Sophia C. Kiersted is past seventy years of age, a widow, and has no children of her own; that Louisa M. Fletcher is more than sixty years of age, has no chilven and that in the event of their dying without children, in case Miss Smith survives, that she will be one of the heirs at law of such decedent, and entitled to a share in the principal of the trust fund. She avers- that neither Mrs. Kiersted nor Mrs. Fletcher are entitled to receive any portion of the principal, their rights being confined solely to the income during life; that the principal of the fund does not vest or become payable until after the death of said parties and then to such persons as shall then be the heirs-at-law of such decedents. She therefore asks that the court appoint a trustee in the place of Isaac H. Kiersted, deceased, and that the court do not confirm the report of the trustee distributing the fund, and that in case the fund has been paid over, that the court order a repayment of same to the new trustee, and for such action-as may be necessary in the premises.

George W. Smith, who is the son of George W. Smith, and a brother of Mrs- Kiersted and! Mrs. Fletcher, also files similar exceptions, and says that in case of the death of Mrs. Kiersted and Mrs. Fletcher without children, in the event he survives, that he will be one the heirs-at-law of such decedent or decedents, and as such entitled to a share of the principal trust fund mentioned in the exceptions.

A hearing was had upon these exceptions, and the matter argued orally and submitted on briefs.

Mrs. Sheeley left a will, naming a sole legatee and devisee, but her share of the trust fund was paid to her heirs under the will of George W. Smith, deceased, and not to the legatee under the will although her will is recorded in this county.

Since the hearing, Mrs Fletcher has made *3*statement in writing that she will not consent to a termination of the trust, and wants it distinctly understood that she desires a trustee to be appointed for her benefit, as directed by the will of her father. ***

It is contended on the part of counsel for the trustes that the proper construction of the will of George W. Smith, would give to his daughters the entire estate; that the intention of the testator, as gathered from the whole-instrument must control, when not in conflict with the law or against public policy, and that the words used in the will are in their ordinary and legal signification, unless it is manifest from the context or other provisions in the will that the testator used them in a different sense, and that the word “heirs” is to be gathered from the intent of the testator, and *380that the presumption is that the word is used as a word of limitation, that under Section 5970, Revised Statutes, which provides that every devise of lands, tenements or hereditaments in any will hereafter made shall be construed to convey all the estate of the devisor therein which he could legally devise, unless it should clearly appear by the will that the devisor intended to convey a less-estate; that it does not clearly appear by the will of George W. Smith that he intended to convey less than the entire estate to his daughters; that he had in mind the intent to give his daughters the entire estate.

First — Because he gives them • the “rents and profits.”

Second — Because the property is to be “set off” to them upon their arrival at age.

Third — Because they “shall receive” their equal share of the land; and

Fourth — Because Sophia may leave her share.

For the first three causes, it depende upon Section 5970, Revised Statutes, quoted above, and upon the case of Allen v. Henderson, 49 Pa. St., 333. In that case a testator devised to his daughter, then and at the time of his death unmarried, certain real estate, in trust for her heirs until they are twenty-one years old, until which time she to have the income for the support of her heirs, and should she die leaving no heirs, the property was to revert to her brothers or their heirs. It was held that the word “heirs” was to be construed as a word of limitation and not of purchase, and that the failure of heirs contemplated in the devise over, an indefinite failure, that the devise in trust for the issue of her body with a devise over limited upon an indefinite failure of issue ,created an estate tail, if any interest vested in her, and that the- grant of the income did pass the estate, and therefore that the trust failed, and the devisee took an estate in fee tail, which, by an act of the Pennsylvania legislature in 1855 became enlarged into a fee simple.

The fourth clause, referrinn- to- Sophia’s authority to “leave her share” refers to the last part of Item 10 of the will, which provides “Sophia may if she please leave her share in the general estate until James would arrive at j .age if he so long lived, and thus have the benefit of the wild land investment up to that time, or his death if it should happen before he arrived at age, said lands for the daughters to be held under the trust aforesaid, profits to them for life, fee simple to heirs.”

Item 11 provides, “It shall be within the power of the trustees to sell and convey the wild lands belonging to a daughter after she arrives at age in order at their discretion or by her request to place it in other secure property, the profits of which shall be paid to her and fee for her heirs.”,

Counsel further claims that the intention of the testator being thus determined, was to give his daughters the entire estate, and that the law fixes the nature and quantity of the estate.

First: That if the word “heirs” is used as a word of limitation, the daughters take a fee simple absolute;

Second: That the rule in Shelley’s case is a rule of property, not a rule of construction ; and

Third: That the estate for life created in the devisee or donee is limited precisely as it would descend at law.

The rule in Shelley’s case vests the entire fee *in*the first devisee or donee-

Prominent lawyers, including Hon. Peter Odlin and Judge Haynes, have been connected-with this trust.

Among other letters introduced in evidence, there was one from Mr. Kiersted, the trustee, in which he says that he had advised with Judge Haynes about the distribution, and that he made it'out in accordance with his advise, that the income on two-thirds of the estate would not go to Mrs. Kiersted and Mrs. Fletcher and then to the survivor, and after them to George, as next of kin. He adds that he leaves that to the future, as he does not pretend to be a lawyer; but this makes the opinion of Judge Haynes in this matter important, as the opinion of one of the most eminent jurists that has ever been at our bar.

Counsel for the trustees bases his case entirely upon the legal effect of the word “heirs” in Item 10. He claims that this word is used as a word of limitation, and hence that IVErs. Kiersted and Mrs. Fletcher were the sole beneficiaries, and that the trust would be lawfully terminated by the act of the trustees conjointly with the consents of these two beneficiaries, but he concedes that if the word ' neirs” is used as a word of purchase, then the exceptions are well taken.

*381Whal estate did the will give to the daughters ?

The intention of the testator must control-, and words should be used in their ordinary and usual signification; the whole will.should be construed as a whole; equitable words should be given their technical meaning; the law favors the vesting of estates. All. these'' rules are subject to the application of the broader rule that the clear meaning of the will, showing the clear intent of the testator, must not be negatived or set aside.

In the first place, the will gives the entire ■estate to trustees. He then defines the nature of the trust. The family is to have a home, free of charge, during the life of the widow. (Item 3) Trustees are to give the children an education. (Item 4) As each child becomes of age its rights to the provision made for all in common is to cease. (Item 3) Each is then to have its own source of income. A distinction is drawn between the boys and the girls. When the boys become of age they are to acquire title to the property provided for them in fee simple. But as to the girls, the testator is equally clear in stating that they are to have not a fee simple, but a life estate only.

He expressly provides that the property of the daughters is “to be still held in trust after their arrival at age.” He provides for no conveyance to them of the legal title at any time, but adds “the rents and profits only to be paid them or either of them during their lives,” (Item 10), the word “only” in the above sentence adding additional emphasis.

He leaves nothing to inference. He carries in his mind continuously the distinction intended between the provisions for the boys and that for the girls. At the end of Item 10 he adds the words, “during their lives with the fee simple to the heirs of said daughters to be divided equally.”

The -words “set off” and “partition” used in the will, are claimed by counsel for the trus- ; tees as words showing that the daughters were to have the fee simple on arrival at age.

Is .this not a strained conclusion?

Even if used technically, it is not such as to justify such conclusion. It provides that the residue of the estate shall be held in trust, for his daughters, to be set off to them by trustees on their arrival at age, but to be still held in trust after their arrival at age and said partition between them.

The property could not remain in trust without the trustees continuing to hold the legal title, which was such a setting off as the testator clearly intended.

The words could not possibly have the significance claimed. A partition does not necessarily mean a division of a fee simple or inheritable estate.

Item 16 provides for the appointment of successors of the trustees of th'is trust. “These appointments shall be evidenced by the written appointment filed in the clerk’s office where this will may be proved, as also all partitions, appraisements, etc., made under this will.”

Conveyances in fee simple are filed in the recorder’s- office.

The word “receive” in Item 10. Counsel claims that the use of this word makes it conclusively follow that under section 5970, Revised Statutes, the daughters were given the entire estate.

This section provides that every devise of lands, tenements or hereditaments in any will hereafter made shall be construed to convey all the. estate of the devisor herein which he could lawfully devise, unless it .shall clearly appear by the will that the devisor intended to convey a less estate.

The last clause of this section clearly shows that the section does not necessarily mean that the whole estate must be devised to the first taker, unles the intention of the testator is clearly shown.

It- does not require Item 10 alone to show the testator^ intention. The idea runs through the whole will, and is consistent with every part of it. Item 11, for instance, provides- that it shall be within the power of the trustees to sell and convey the wild lands belonging to a daughter after she arrives at age, so as to place it in other secure property, the income and profits of which shall be paid to 'her and fee to- her heirs.

If the daughters are to receive each her whole share in fee, how could the trustees sell it, if the daughters had acquired a fee simple? This seems to show the sense in which, the testator used the Words “to sell off to them” in Item 10. He regards the share of each as “belonging to the daughter”- in the sense intended by him, although the trustees held the title, so that the daughters should *382receive the net income, with fee to their heirs.

Item 12 gives the trustees the managemnt and control of the property "committed to their trust’ in addition to the legal estate in them as trustees.

Item 13 provides for 'a readjustment in case qf a death before age, but it expressly provides that “any amount of property taken by a daughter under this clause shall remain and vest in said trustees for her* use for life and to her heirs in fee simple.”

Unless some positive rule of law or enactments of statutes should require it, the court construe this will so as to follow former constructions by courts and interested parties in the administration of an estate.

It is now over sixty years since the administration of this estate began. When the sons became of age their shares were conveyed to them in fee simple. When the daughters became' of age, the title remained in the trustees.

In 1863, five years after the last daughter became of age, the real estate held in trust for the daughters was sold as entailed real estate, under section 5803, Revised Statutes, and converted into *money,*the trustees appointed under section ¿809, and the fund has ever since remained subject to the jurisdiction of this court.

If the trustees and daughters themselves together own the entire legal and beneficial estate, this proceeding was entirely unnecessary. The same purpose could have been accomplished by joining in a deed and the proceeds divided a tonce.

Henry Stoddard, Esq., who drew the will, did not die until 1871; Judge Hayne was on the bench when the suit was brought, and subsequently advised the trustees, and one of the ablest lawyers at the bar, Hon. Peter Odlin, ¡ acted as one of the trustees. All these eminent men evidently agreed as to the correctness of the construction contended for on the part of the' exceptors herein.

A very important matter in this connection is the fact that under the advice of Judge Haynes, the share of Mrs. Ann Shelley, swho died without issue, her husband surviving her, was divided between Mrs. Kiersted, Mrs. Fletcher, James Manning Smith and George W. Smith, each of them receiving one-fourth. The trustee who now attempts to terminate the trust made this division. This was distributed as the estate of the testator George W. Smith under this will. If it had been distributed as-Mrs. Sheely’s property, it must first have gone to her executor, as she left no will.

The court, being satisfied from the language of the will, that the.testator intended to give a life estate to his daughters, and the fee simple in remainder to their hrirs, there is nothing in the way in which the word “heirs” is used,. that will in law defeat , this intention.

As to the application of the rule in Shelley’s case, it -is very true it had been decided in King v. Beck, 15 Ohio, 562, that it is not a rule of construction, but a rule of property,, but Judge Read in that decision says that the testator may use the word “heir,” and take it without its usual legal sense, or if the plain-intention manifested in the will shows that it was not employed in its usual legal sense, but with words of explanation showing the manifest intent of the testator, it can be made a word of purchase. If, where the word “heir” is used, there be superadd-ed words of limita.tion, establishing a new succession, the first donee or devisee would take but a life estate.

The expressed intention then, of the testator, will fix the meaning of- the word “heir.” It -is said that a mere implication will not.

The rule in Shelley’s case has been very fully investigated and commented upon since the submission of this case, by Judge Pugh in the Franklin county common pleas, in the case of Hess v. Larkin, 7 O. N. P., 314. This-case arose under a deed.

The rule in Sheley’s case as. applied to 'wills was abrogated by statute in Ohio, in 1840. Trustees v. Thoman et al. 51 Ohio St., 297, Section 5968, Revised Statutes.

Even before the passage of this statute, it .was held inapplicable to defeat the clearly expressed intention of the testator, as stated in King v. Beck, supra. The rule cannot be appealed to to assist in ascertaining the intention;. To say that the rule in Sheeley’s case as a rule of property will still be applied in case the court finds the testator used the word “heirs” as a word of limitation, is only to show in another form that the testator’s intention will govern. ,

The rule as to the vesting of estates yields-to the intention in the same way.

The rule that such a construction will be favored as will contribute to the immediate vesting of an estate-will not be applied so as-to defeat the intention of the testator.- Bald*383win, Admr. v. Humphrey, 4 O. C. C., 57.

Young & Young, for exceptors.

Murat W. Hopkins, of Indianapolis, for trustee.

The heirs of these daughters take a contingent remainder. The word “heirs,” was maifestly not used in the sense of children. The daughters were quite young and had no children, nor have they yet. There was no one in whom the estate could vest, nor will there he until their deaths. This being so, it is impossible to terminate the trust during these daughter’s lives, .because there is no one to ■consent on behalf of the remainder-men.

The exceptors'herein have not a vested estate, it is true, but, as next of kin, they are heirs presumptive or apparent, and have rights which the law ought to protect.

Isaac H. Kiersted was a trustee under this will, and as such an officer , of this court, appointed for a specific and continuing purpose. Section 5809, Revised Statutes.

And had no right or authority to terminate this trust with the consent of Mrs. Kiersted and Mrs. Fletcher, and especially was he not authorized, as Mrs. Fletcher does not consent, and so states in writing.

It is therefore the finding of this court that the exceptions be sustained and a new trustee appointed, to whom the balance of the funds to wit, $14,430.27, will be given in trust, upon his qualifying and giving bond in the sum of $30,000.