POWER TO CONVEY PROPERTY BEQUEATHED TO CHILDREN FOR LIFE.

Court of Appeals for Richland County.

#### Layer v. Kreiter et al.*

Decided, January 29, 1917.

*'Wills*— Life *Estate Created in Sons*— With *an Estate in.Fee Simple in Grandchildren*— Invalidity *of Conveyance by Grandson Before Title Sad Accrued in Sim.*

Where a will creates an estate for life in certain real estate in relator’s two. sons in equal shares, an estate for life in the survivor of said two sons in the whole of said real estate, and at the death of such survivor an estate in fee simple in equal shares to the heirs of the body of each of said sons, and further provides that if, at the death of such survivor, the heirs of the 'body of either are deceased, the whole estate shall pass to the. heirs of the body of either then surviving, no estate passes to the children of said two sons of the testator until the death of the survivor, and a deed by one of said children made prior to the death of the survivor of testator’s two sons passes no title to such real estate.

Heard on appeal.

Philip Laver, a formfer resident of Richland county, died testate on the — day of November, 1898/ seized of certain real estate in the petition described. He was survived by two sons, Philip J. Laver and George M. Laver, who were his next of kin and heirs at law. Philip J. Laver died in 1908, leaving the plaintiff, Edith Laver, his only child and sole heir at law, and George M. Laver died on November 5, 1915, leaving the defendant Harold A. Laver, his only child and heir at law.

The action is in partition. The parties are the plaintiff, the defendant Harold A. Laver, and other defendants claiming title or right to the undivided half of said premises, or the proceeds of the same, through conveyances from said Harold A. Laver. The rights of the parties are based on the will of Philip Laver and the deed of said Harold A.' Laver, of date December 2, 1912.

*158There is no question as to the rights of the plaintiff, Edith Laver, it being conceded that she is entitled, on distribution, to one-half of the proceeds of sale of said premises.

All the questions presented for adjudication are raised on the construction of items two and three of the will of Philip Laver. Said items are as follows:

“Item 2. I will and devise to my two sons, George M. Laver and Philip J. Laver, the equal use and enjoyment of the rents and profits of my real estate during their natural lives, or during the natural life of the surviving one of them, in case'of death and at the decease of the surviving one of them, to descend as hereinafter designated in item three.

“Item 3. At the decease of my said two sons George Mi Laver and Philip J. Laver, or the surviving one of them, I will and devise my real estate in item two referred to, to the heirs of the body of my said sons, namely, the children of my said son George M. Laver, the share to which he would be entitled, and to the children of my said son Philip J. Laver, the share to which he would be entitled, if living, and if at the decease of the surviving one of my said sons, George M?. and Philip Laver, the heirs oE the body of either shall have deceased, then I devise to the heirs of either so surviving, their heirs or assigns, said real estate in fee simple.”

It is contended on the part of Harold A. Laver that at the time he made his quit-claim deed to the defendant, Martin Kreiter, he had no interest in said real estate that he could alienate, his father being still alive; while it is contended on the part of Martin Kreiter, and those claiming under him, that Harold A. Laver was then vested with a fee simple title to the half of said real estate, subject, however, to defeasance in the event of his death before the death of his father, George M. Laver.

*H. T. Manner*and *G. H. Workman,*for plaintiff.

*Van G. Gooh, G. TS. McBride*and *W. H. Gifford,*contra.

Powell, J.

The facts out of which the controversy in this ease arises, and the controversy itself, are clearly presented in the above statement of facts, and, while there are other issues presented by *159the pleadings, they are subordinate to the question of the right and authority of Harold A. Laver to sell and convey the said real estate at the time he attempted to convey the same to Martin Kreiter. Items two and three of the will of Philip Laver create the following estates in said lands:

1. An estate for life in testator’s two sons, George M. and Philip J. Laver, in equal shares.

2. An estate for life in the survivor of said two sons, George M. and Philip J. Laver, in the whole of said real estate.

3. At the death of such survivor an estate in fee simple to the heirs of the bodies of said George M. and Philip J. Laver, in equal shares to the heirs of the body of each of said sons.

4. If, at the death of such survivor, the heirs of the body of either are all deceased, the whole estate is given to the heirs of the body of either then surviving.

It will be noticed that the fee simple title from testator’s death until the death of his surviving son is not vested anywhere, by the terms of the will. It therefore descended by operation of law to the heirs at law of the testator, viz., George M. and Philip J. Laver. It could not pass to Editli Laver or Harold 'A. Laver, as they were not heirs at law of the testator. It could only pass to them by the terms of the will itself. It did not so pass because the will fixes the death of the survivor of testator’s two sons as the date when the fee simple title should pass, and then not to Edith and Harold A. Laver, individually, but to the heirs of the bodies of George M. and Philip J. Laver, as a class. Edith and Harold A. meet the requirements 'of the will as to the class that should take said estate at the date fixed, viz., at the death of George M. Laver, which occurred on the 5th day of November, 1915.

Harold’s deed to Martin Kreiter was made December 2, 1912, nearly three years before any title whatever accrued to him under the will of Philip Laver.

We are of the opinion that the deed of Harold A. Laver to the defendant Mlartin Kreiter did not convey to the grantee named in said deed any right or title to the real estate in controversy.

*160The estates created by the will of Philip Laver are in legal effect entailed estates, giving to the first takers an estate for life only, and to the issue of the first takers, or to the heirs of their bodies, an estate in fee simple.

A rule of construction for such cases is laid down in the cases of *Dugan*v. *Kline et al,*81 Ohio St., 371; *Dart*v. *Dart,*7 Conn., 250, and *Carter*v. *Grossnickle,*11 N.P.(N.S.), 465, affirmed without opinion, 88 Ohio St., 577.

Under these authorities Harold A. Laver had no interest in said lands that he _ could alienate. Neither is anything pleaded or shown by the testimony that would operate as an estoppel against him.

Kreiter having paid certain money for the benefit of Harold A. Laver, he ought, in equity, to have the same repaid to him, and this would be so ordered. The same decree may 'be entered in this court as was entered in the court of common pleas.

Judgment rendered in favor of defendant Harold A. Laver and against all other defendants, excepting as to the money ordered repaid to Martin Kreiter.

PIouck, J., and Shields, J., concur.