WILLS.

[Lucas Circuit Court.]

Haynes, Bentley and Scribner, JJ.

#### William I. Hull et ux. v. Joseph S. Hull et al.

1. Devise to Wife without Limitation Construed to Convey only a Life Estate.

Testator by the third clause of his will devised to his wife “ also the farm, with its provisions, produce and stock of every kind and implements of husbandry thereto attached lying upon and near the plank road, etc,” without words of limitation or perpetuity. The two preceding clauses and the fourth clause of the will devised other property to the wife during her natural life and a subsequent clause provided that “ after the decease of my aforesaid wife it is my will that the remainder of my estate, real and personal, be equally devided, etc.” Held, that the third clause of said will devised to the wife only a life estate.

2. Son Induced to Remain at Home by Father’s Promise to Purchase and Give him Certain Property — Specific Performance Decreed.

Where a father induced his son, and his wife, to give up a plan of removing to another state, and to remain near him, by offering to buy a piece of property and assist them in improving it for a home for themselves, and their children, which proposition was accepted by the son and his wife, the property selected, improved and so occupied for a period of years, the court will decree a specific performance of that contract. And although the fathers will, which evidently intended to devise said property, known as lot number 95, to the son conveys instead lot 94, which the father at that time did not own, cannot be reformed to the extent of substituting lot 95 for 94, it may be received as evidence of testators intention to carry out the terms of his original agreement.

Appeal from the Court of Common Pleas of Lucas county.

Scribner, J.

This case is brought into this court by way of appeal from the judgment rendered by the court of common pleas.

On December 26, 1864, one Isaac Hull departed this life, being the owner at the time of his death of a large amount oí property, both real and personal, situate in the county of Lucas. This property consisted largely of farming property, provided with farming utensils and implements and other personal property usually found on farms. There was also a number of houses and lots in the village of Maumee, where the decedent resided for a long period of time prior to his death. There were store buildings, dwelling houses and merchandise, household uten*20sils and other property not necessary to enumerate particularly. He left surviving him, his widow, Chloe Hull and two sons — William Robert Hull and Joseph S. Hull. About a year after the death of the testator, William Robert Hull died and left, as his heir at law the plaintiff in this action, William I. Hull and also his widow whojhas married again and who appears in this proceeding as Bmma A. Crosby.

On August 24, 1858, he made and published his last will and testament, in due form. On December 23,1864, some three da3ys before his death, he added a codicil to his will, by which he revoked a pecuniary legacy contained in his will, for one thousand dollars to his son William Robert Hull, and reaffirmed his will in all other particulars.

The present proceeding was brought partly to adjust and determine the rights of the parties in the property left by the deceased and partly for a partition of the real estate remaining undisposed of subsequent to the death of the deceased, by arrangement among the parties. The only questions presented to us relate to the construction of certain provisions contained in the will of the deceased testator in connection with certain transactions growing out. of those provisions, it being suggested on the trial that as to all other matters except those growing out of the disputed construction of the will, an agreement and arrangement had been entered into between the parties. We are not called upon to decide any matters excepting questions arising out of and resulting from the will which has been mentioned.

Chloe Hull has deceased and is not at present before the court. One of the principal questions in controversy here is as to whether or not, under the provisions of the will, the widow was given, by its terms, a life estate, or a full fee-simple estate in certain farm property described in the instrument.

The will is short, and a consideration of all its provisions seems necessar3* to reach a proper conclusion, and is as follows:

> “ Be it known that I, Isaac Hull, of Maumee city, Rucas county, Ohio, do make and publish this my last will and testament.

> “Item First. I give and devise to my beloved wife Chloe in lieu of her dower to lots and appurtenances on which I now reside including the brick dwelling house, old brick store, wood house, well, etc., with all the household goods furniture and other property that may be thereon, during her natural life.

> “ Also I give and bequeath to her lot No. 97 in the old plat of Maumee aforesaid with its appurtenances, with all the goods wares and merchandise aud property of every kind within or upon said lot to me belonging during her natural life.

> “ Also the farm with its provisions, produce and stock of every kind and implements of husbandry thereto attached lying upon and near the plank road running N. W. beyond the residence of A..D. Williams containing four hundred acres more or less.

> “ Also one-sixth part of the toll bridge between Maumee city and Perrysburg with all other property real and personal to me belonging, freely to use and enjoy during her natural life, except lot No. 94 in the old plat of Maumee, which I hereby give and bequeath to the heirs of my son Joseph S. Hull.

> “ Item Second. I do hereby nominate and appoint my sons, Joseph S. Hull and W. Robert Hull, executors of this my last will and testament, hereby authorizing and empowering them to compromise, adjust, release *21and discharge in such manner as they think proper the debts and claims due me.

> “ Item Third. I do hereby give and bequeath to my son, W. Robert Hull, the sum of one thousand dollars to be collected from claims and debts due or from funds that may be on hand at my decease.

> 11 Item Fourth. After the decease of my aforesaid wife, Chloe, it is my will that the remainder of all my estate, real and personal, be equally divided between my two sons or their heirs, Joseph S. Hull and W. Robert Hull.

> “If it shall become necessary in order to pay my debts, I do hereby authorize and empower my executors aforesaid to sell by private sale, in such manner as they may think proper all or any part of my real estate and deeds to purchasers, to execute, acknowledge and deliver in fee simple.

> “ In testimony whereof I have hereunto set my hand and seal this 24th day of August, A. D. 1858. Isaac Hull (Seal).”

It will be observed that in the clause immediately preceding the last one which I have read, there are contained no words of limitation upon the estate devised and no words of perpetuity, and the question is, whether the limitation contained 'in the concluding clause of that paragraph immediately following applies to and limits the force and effect of the previous clause. I will read ijt again :

> 11 Also the farm with its provisions, produce and stock of every kind and implements of husbandry thereto attached, lying upon and near the plank road running northwest beyond the residence of A. D. Williams, containing four hundred acres more or less.” “ Also one-sixth part of the toll bridge between Maumee city and Perrysburg, with all other property, real and personal, to me belonging, freely to use and enjoy during her natural life, except, lot No. 94 in the old plat of. Maumee,[which I hereby give and bequeath to the heirs of my son, Joseph S. Hull.” “ Freely to use and enjoy during her natural life.” If the clause or expression which I have made use of is to beallowed to attach to both of these gifts, then, of course, the widow takes but a life estate. If it has no application to the preceding clause, then she takes under the statute although there are no words in perpetuity — an estate in fee. And it is upon the entire will, upon the objects and purposes of the testator to be gathered from the language of the entire will, that we are to resolve this question of doubt arising upon its face. There appears at the commencement of the first clause upon which this question arises, a blank, which, apparently was left for the purpose of filling in the number of acres contained in the tract. The testator has proceeded to write, apparently with his own hand, this will, until he has got to that part of the description which closes by saying : “ lying upon and near the plank road running northwest beyond the residence of A. D. Williams, containing— ” and there follows the blank, and that is filled in, evidently at another time from the face of the writing, the number of acres according to the estimate of the testator — “four hundred acres more or less,” and that is immediately followed by the other clause which gives certain other property, and closes with the expression “ during her natural life.” That is followed by the exception as to lot No. 94 which is given to the heirs of the son, Joseph S. Hnll; and, in respect to that provision, another question arises which will be considered further on.

> “ Item Second. I do hereby nominate and appoint my sons, Joseph S. Hull and W. Robert Hull, executors of this my last will and testament, hereby authorizing and empowering them to compromise, adjust, *22release and discharge in such manner as they may think proper the debts and claims due me.”

> “ Item Third. I do hereby give and bequeath to my son, W. Robert Hull, the sum of one thousand dollars to be collected from claims and debts due or from funds that may be on hand at my decease.” That is the clause revoked by the codicil of December 23, 1864, but the will is not affected in any other respect by the codicil.

> “ Item Fourth. After the decease,” etc. This item, in our judgment, is of importance in construing this question and in reflecting upon the purpose and intent of the testator at the time he prepared this will.

> “ Item Fourth. After the decease of my aforesaid wife, Chloe, it is my will that the remainder of all my estate real and personal be equally divided between my two sons or their heirs, Joseph S. Hull and W. Robert Hull.” “ If it shall become necessary in order to pay my debts, I do hereby authorize and empower my executors aforesaid to sell, by private sale, in such manner as they may think proper all or any part of my real estate and deeds to purchasers, to execute, acknowledge and deliver in fee simple.”

If the clause in controversy stood alone by itself, that is to say, if that were the only gift to the widow and there was nothing else in the will tending to qualify the expressions used by the testator in reference to that clause, it would seem tolerably clear perhaps that the object and purpose of the testator was to give to his wife the fee simple of the farm in question. But we think that clause, when you come to take the will as a whole and consider it in all its parts — that it is manifest upon the face of the will that the testator intended to apply to the clause in question the limitation that is affixed to all other gifts to the wife and that the limitation contained in the clause immediately following was intended to apply to both parcels of property described at that point of the will. His first gift is to his wife of the lots and appurtenances upon which he resides, including the dwellings, etc., which may be upon it with all the household goods, furniture and other property that may be thereon during her natural life. And also “ I give and bequeath to her lot 97 in the old plat of Maumee aforesaid with its appurtenances, with all the goods, wares and merchandize and propert3r of every kind within or upon said lot to me belonging, during her natural life. Also the farm with its provisions, etc., containing four hundred acres more or less. Also one-sixth part of the bridge, etc., * * * freely to use and enjoy during her natural life.” * * *

We cannot resist the conviction and it appears to us that upon the face of this instrument, taking the terms and provisions in all their parts, that the testator intended to apply the same limitation upon the gift of the farm property as is applied to the other property, and the view we take is greatly strengthened by the fourth clause, which provides that after the decease of the widow — “ It is my will that all the remainder of my estate, real and personal, be equally divided between my two sons,”' etc. The object and purpose, as it seems to us, of the testator was to give the use of all this property to his wife excepting this one lot withdrawn from its operation, and that after his death it should be divided equally between his two sons. If by the terms “The remainder of all my estate real and personal,” contained in the fourth clause of his will, the testator meant the property not before described in the will and did not*mean to include the entire remainder in the lands which were specifically devised to his wife for life, then he died intestate as to such entire *23remainder; for unless the estate in the remainder so devised comes within the operation of this clause, it remains undisposed of. - If that clause was intended to apply to and dispose of so much of the property which the widow might lawfully use for her subsistence and should remain unconsumed at her death, and is limited to that, then the remainder in fee in the lands secured to wife for life would in like manner remain undisposed of. If it was intended- to apply to the lands which had been already devised in fee, then it would be inoperative, as inconsistent with such •devise. In our opinion, the fourth clause of the will was intended to, and did embrace the estate in remainder in the lands devised to the widow for life, and, in that sense, the term was used to apply to all the property described in the will as being given to the wife.

It was suggested in the argument that if that should be the construction as to this particular farm, the same effect would be given as to the devise of lot 94 to the heirs of the son Joseph. But it will be observed that as to this devise it is the only one that is made to the son or to any other person outside of the devise or bequest made to the wife— to the widow — that is to say — all the other property both real and personal is given to the widow; at her death is to be divided equally between the two sons, excepting, however, from the general language by which all of the property not before described is given to the wife for her life, this particular lot 94, and we do not feel that in giving to the language ■of the whole will, such a construction as vests in the widow the property for her use during her life, that we are doing any violence-to the language used, in holding that as to lot 94, specifically devised to the children of the son, this limitation did not apply.

There was introduced upon the trial, under objection and subjection, a large amount of testimony tending to show — or I might say in advance ■of that — -that after the death of the testator the widow, with the aid and assistance of Joseph, and probably the other son, conducted a merchandizing business at Maumee, the business which had been left by the testator; and this was in compliance with a suggestion contained in the codicil, that his business should be carried on by the wife, with a view of giving aid and assistance to the son employed in the business. She became bankrupt and proceedings in bankruptcy were taken against her. In the course of those proceedings the assignee of the bankrupt — the widow — made a sale of all her property, including her interest in this farm property under the will. In the application, this property was described as a life estate. The langauge of the order of the court was not very clear as to what was sold — or rather, to be sold — except that, if fairly construed, it might be said to order the sale of her interest in this property. By amended proceedings here on the part of the plaintiff, it was insisted that if the widow was invested with a fee under the will, nevertheless in this bankruptcy proceeding it was understood by the assignee and by Joseph — by all parties interested, that in point of fact, in a true construction of the will she had but a life estate, and if by reason of these proceedings and under the order of the court, Joseph became the purchaser, if Joseph did in fact acquire the fee of the land, yet as to the' remainder after the expiration of the life estate of the widow, he held that, it is said, in trust for the creditors, if they were unsatisfied, and if they were satisfied then for the heirs. But, under the view we have taken of the case, and the construction put upon the will, it is not necessary to consider it now and the testimony introduced tending to show the understanding of the parties as to the effect of the bankruptcy pro*24ceedings we regard as immaterial and irrelevant,, and therefore rule it out, subject, however, to the right of the plaintiff in the case to preserve their exception.

Another phase of the case which remains to be discussed is this : in the clause to which reference has already been made, after devising to the widow “with all other property real and personal to me belonging, freely to use and enjoy during her natural life” occurs this : “Except lot No. 94 in the old plat of Maumee, which I hereby give and bequeath to the heirs of my son, Joseph S. Hull.” At the date of this will, the testator was not the owner of Lot 94. He was the owner of several lots as numbered upon the old plat of Maumee — there was 95 and 96, 92, 23, and parts of 24, it I remember the description correctly. After the making of that will, and before the date of the codicil, he acquired the title to lot 94 in an adjustment that was made between the parties, and acquired an interest by mortgage and other transactions and after the death of the testator lot 94 was surrendered to one of the lien-holders in a cross petition filed in this case by the children of Joseph S. Hull, and it is claimed that it was intended in and by this will to give to them — to these children —lot 95 instead of lot 94, which the testator didn’t own at the time he made the will, and considerable testimony is introduced tending to show that in point of fact the testator did intend in his description here to describe lot 95, which he did own at the date of the will and not to describle lot 94 which he did not own, and that the description of lot No. 94 was due, we may say, to a mistake of the scrivner or the testator.

Now, in the view that we take of all the testimony that has been introduced here, we are of opinion that this question is really a matter of no importance in this case. The question, however, as to whether or not it is competent upon the proof of the extrinsic -facts and circumstances existing at the date of the execution of this will, to apply the terms of the will to lot 95, instead of to lot 94, is fairly and squarely before us and we are called upon to express an opinion upon it, although we think that the plaintiffs in the cross petition are entitled to substantial relief whatever our conclusion may be upon this particular proposition. There was a determination by this court a short time since, Judge Moore sitting with my associates in the consideration and determination of the case— of a question which we think was identical in principle, and that was a case where a testator devised certain lots, say 455 and 456, in a certain addition of Toledo. He did not own lot 455, or lot 456, but he did own lots 155 and 156. Upon very careful consideration of the authorities bearing upon the proposition involved in that case, my brethren and Judge Moore came to the conclusion that no relief could be afforded in the case — that there was nothing in the will itself, when the defective description was stricken out, that would enable the court to apply the devise or gift to the property which it was supposed it was intended should be devised and in reference to which the testator or the scrivner or draughtsmen of the will had undoubtedly make a mistake.

In this case, if the testator by this will had specifically devised all the other lots which he owned as numbered upon the old plat of Maumee, except this lot 95 — he at that time not being the owner of lot 94 — perhaps it would not be doing violence to the rules applicable to such cases to hold that the testator intended thereby to describe lot 95 and to bring the case within the rule which permits that to be done and apply the will to the supposed subject matter ; but in this case, there was at least one other lot — 96—as well as lot 95, to which, if the number here were *25stricken out and it were left as “lot No. blank” — this description would apply as well as to lot 95, although the proof made in the case tends strongly to show that lot 95 and not 96 was intended by the *testator;*but that as it appears to us, would be in the nature of reforming the will by correction rather than making the application of the blank in the will to the supposed subject matter. But, aside from this consideration, these facts appear in the case: About the year 1858, Mr. Joseph S. Hull had made a visit to Kansas. His,home before that had been at Maumee. He had gone to Kansas with a view to looking about and determining whether or not he would remove to Kansas with his family. He returned from that visit somewhat undetermined in his mind as to what he had best to do. Thereupon it was proposed to him and. his wife, Mrs. Hull that if he would abandon his contemplated purpose of removing to Kansas and would remain there at Maumee with them, with his father and mother, that he would buy a piece of property for them — would assist them in improving it and put it in proper shape for them to use and occupy as a home for themselves and their family. This proposition so made by the father was accepted by Joseph S. Hull and his wife, and at the suggestion of the father, Mrs. Hull selected the property which should be theirs. The testator was not then the owner of it, but she selected it, and upon her selection it was purchased by the father and purchased for them and for their home to own for themselves and for their children. At the time of this selection it appears from the testimony— which is undisputed — the father rather spoke in terms of approval and commendation of Mrs. Joseph Hull at the modesty which she had displayed in the selection of the home which he had authorized her to make, in selecting a home of moderate cost and expense and it was bought and improved and Joseph S. Hull and his family were put in possession of that for their home and they have occupied it since 1858, under the arrangement so made between them and their father.

Upon a careful examination of the authorities bearing upon this state of facts, we are of opinion that there was a sufficient consideration on the part of Joseph S. Hull moving to the father, in the renouncing and abandoning of his purpose to remove to Kansas and his determination to remain with his father and occupy this property as a home, to constitute a binding obligation on the part of the father to secure to the family this particular lot 95 as a home.

Without stopping to read particularly from the authorities referred to and as supporting this proposition we refer to Waterman on Specific Performance, secs. 271, 283, 284, and to notes on pages 388 and 389. And in a case reported in Uaw v. Henry, 39 Ind., 414,.I find this syllabus:

> “ Where a father induced his daughter, her husband and children, to break up their residence and remove a long journey, at considerable expense, to a place near his home, that he might enjoy their companionship, by a promise to convey land to the daughter, and he accordingly purchased and placed them in possession of land upon which they made valuable improvements, and of which he made a deed but did not deliver it to his daughter when he died; held in an action by the husband and children (after the death of the daughter) against the father, for the specific performance of the contract, that there was a good valuable consideration for the contract and it 'was not within the statute of frauds and must be enforced in their favor.”

Now, there was not here a breaking up of their home abroad; there was no removal, but that would only go to the extent of the value of the *26•consideration and not to the principle. The doctrine there laid down, in our jndgment, applies here. And the same doctrine is declared in several of the cases cited in Mr. Waterman’s book. There is a case •decided in 1876 — Ungeley v. Ungeley, 4 Taw Reports, Ch. Div., 73, where this was held by the Dord Chancellor:

> “ A father verbally promised, in contemplation of the marriage of his daughter to give her a house as a wedding present, and immediately •after the .marriage he put his daughter and her husband in possession. The father was then the owner of the house, which was a leasehold and was subject to a charge in favor of a building society, payable in installments. The father paid those which fell due during his life time,- and at his death there remained a balance of ¿'110, which fell due shortly afterwards : held, that the verbal promise to give the house having been established, the possession was a part performance which took the case out of the Statute of Frauds; that the contract was to give the house free from incumbrances, and that the ¿110 was payable out of the father’s •estate.”

The father in that case had been making the payments. This case was appealed and is found again reported in 5 Daw Reports, Ch. Div., 887, where upon appeal, all of the judges concurring, the decree of the Vice Chancellor was affirmed.

Now, upon the allegations in the cross-petition of these children (one was born before they moved upon this property and several were born .after) the allegations of the cross-petition of the children, which were supported by the proofs, show that — after showing that they are the •children and the only heirs at law of the defendant, Joseph S. Hull, they set up that during the year 1858 and shortly prior to the making and publication of the said last will and testament, said Isaac Hull purchased said lot 95; that he was not the owner of lot 94; that he intended to devise to said children said lot 95 for a permanent home ; that they have been in continuous, open, notorious and adverse possession of said lot 95, as •and for a homestead and are now in such occupancy, and other averments. These allegations, as I have remarked, are distinctly proved by the testimony and proof was made of the arrangement between J oseph S. Hull and his wife and his father respecting the abandonment by Joseph S. Hull of his project of removing to Kansas and remaining there, and this is the prayer of the petition.

Now, we think that without any further allegations in this cross-petition, the defendants are entitled to a decree which shall protect them against any partition of this particular lot 95 and which shall secure them in their possession and occupancy and enjoyment of that lot, and with a slight amendment to this cross-petition alleging this arrangement to be based upon the consideration which I have mentioned, we should be of •opinion that there should be granted affirmative relief, that is to say that this plaintiff here and his mother should be decreed to quitclaim and surrender any such claim that they set up against these children. I name these children, because although in our judgment we are not permitted to undertake to reform this will — to correct the statement of the testator — yet we may look upon the language as used in this will as we might look upon any other document he had written, as showing a purpose upon his part to secure to these children the title to this lot 95, .and the decree of the court will be in accordance with this opinion.