#### Judy et al. *v.*Trollinger et al.

*Constitutional law*— Sale *of entailed estates*— Section *11925 et seq., General Code*— Unborn *child bound by virtual representation*— Effect *of waiver of summons and appearance by guardian*— Appointment *of guardian ad litem unnecessary, when*— Executors *as master commissioners*— Receipt *of share of proceeds.*

(No. 18112

Decided May 27, 1924.)

Error to the Court of Appeals of G-reene county.

This was an action begun by Olevia May Judy to partition certain land in Greene county, Ohio. ■She claimed to derive her right to the said land as granddaughter of one Isaac Wilson, former owner of the said real estate. Upon June 7, 1858, the said Isaac Wilson- made a will touching the said land. Item No. 11 of the will was as follows:

“I give and devise and bequeath to my son, Isaac Wilson, the southeast quarter of section No. 8, township No. 3 and range No. 8, between the Miami rivers, being the same tract described in a patent granted to me dated January 22nd, 1828, to have and to hold the said land unto the said Isaac Wilson for and during his natural life and to his heirs in fee simple forever.”

On October 23, 1858, Isaac Wilson made the following codicil to his will:

“I do hereby give and devise to my daughter, Martha Judy, wife of Joshua Judy, the tract of land in item 11 of said will mentioned and devised to my son Isaac Wilson, now deceased, in lieu of and instead of the tract of land and house and lot *577in item 9 of said will mentioned and devised to her, to have and to hold said tract of land herein devised to the said Martha Jndy in the same manner and subject to the same conditions and incumbrances that the said Isaac Wilson deceased, might have held the same under item 11 of said win.”

The land referred to in the will and in the codicil is the same land described in the petition.

On April 4, 1859, five months after the execution of this will, the General Assembly passed the act relating to and authorizing the sale of life and entailed estates. This act became effective on April 4, 1859, and is found in 56 Ohio Laws, p. 154, and in Swan & Critchfield’s Statutes, vol. 1, pp. 550, 551, and 552. The act was Section 5903, Revised Statutes, and is now ¡Sections 11925 to 11935, General Code.

Upon March 30, 1864, the second amendatory act was passed. See 61 O. L. p. 88. On April 13, 1865, the third act was passed. See 62 O. L. p. 184.

The testator died on April 10, 1860, after the act of April 4, 1859, was in full force and effect. At his death he owned the land referred to in the will, codicil, and petition.

On April 17, 1860, more than one year after the Entailment Act was passed, the will was probated.

Martha Judy went into possession of the land as life tenant under the will and codicil. Upon November 12, 1869, she commenced an action in the common pleas court of Greene county, under the act of April 4, 1859, above mentioned, and under the amendatory acts, to sell the life estate and reinvest the funds as provided by law.

At the time Martha Judy commenced the.action *578for sale of the said real estate she had nine living children, to wit, Kossuth Judy, aged 17; Florence A. Judy, aged 15; Henry C. Judy, aged 14; Ohio B. Judy, aged 12; Wilson L. Judy, aged 10; Mary E. Judy, aged 7; Uriah B. Judy, aged '6; Oliver O. Judy, aged 4; Frank W. Judy, aged 2.

One Samuel H. Judy was appointed guardian of all these minor children by the probate court of Darke county, Ohio, on December 3, 1869. In the action for sale of the said real estate each and every one of Martha Judy's children was made party defendant, their names appearing in the caption of the petition. Samuel H. Judy was also made defendant as guardian.

Upon December 6, *1869,*Samuel H. Judy, as such guardian, filed an answer waiving the service of notice of the pendency and prayer of the petition and entered his appearance therein. In the answer the guardian consented to the sale of the life estate.

A judgment was rendered, ordering the sale of the life estate, an order of sale issued, a master commissioner was appointed to malee sale, and the land was sold at public auction to one Uriah Wilson.

A deed by order of the court was made to him, “free and clear of all entailment or limitation over,” and the master commissioner was ordered to reinvest the proceeds as required by law.

Uriah Wilson, the purchaser, in 1871, conveyed the land to one Philip Markley by warranty deed; Markley by like deed conveyed in 1874 to Abraham Brake; Brake by like deed on February 15, 1892, conveyed to A. L. Shuey; and Shuev by like deed on August 27, 1902, conveyed to defendant in error. *579James Trollinger, who has ever since been and now is still in possession.

William H. Wilson, the master commissioner, was removed on February 7, 1882, and one D. P. Irwin was appointed his successor. Some litigation arose between Irwin and his predecessor master commissioner to recover the funds; the funds were fully recovered, and the court wherein they were recovered ordered a small portion of the funds for the recovery and expenses thereto.

On September 10, 1884, D. P. Irwin, as such master commissioner, was ordered by the court of common pleas of Greene county, Ohio, to reinvest the funds and proceeds in certain real estate in Darke county, Ohio. This he did on September 17, 1884, taking title thereto “to Martha Judy for life and at her death to her heirs in fee simple,” as provided in the will and codicil, and the Entailment Act and order of court.

In the meantime the only plaintiff below, Olevia May Judy, was bom in 1872.

Some time prior to November 24, 1898, Oliver Judy, a child of Martha Judy, and a plaintiff in error here, bought from his mother her life estate in the 80 acres in Darke county. Upon November-24, 1886, Oliver Judy commenced a partition proceeding to partition the Darke county land, in the court of common pleas of Darke county. This land, which was the same land purchased from the proceeds of the sale of the Greene county land, was regularly sold in partition at public sale.

Martha Judy, the life tenant, died in 1910.

In the present partition action in the court of common pleas, Oliver C. Judy, Henry C. Judy, *580Frank W. Judy, Uriah B. Judy, Florence A. Martin, Mary E. Stevens, Ohio Belle Shaner, Wilson L. Judy, Mearly Burgoon, Forest Judy, Wesley Judy, Mabel Smalley, Hazel Oplinger, Bonnie Pappa, Myrtle Mendenaull, and Frederick Smalley, defendants, admitted the ownership, title, and interest of the plaintiff in the said premises described in the petition.

The defendant James Trollinger filed an answer and cross-petition. The answer comprised three defenses, first of which was a general denial. The second defense set up the proceedings in Greene county for the sale of the premises in 1860 as a bar to the action.

The third defense incorporated the allegations of the second defense, set up the facts concerning the investment of the funds received from the sale of the Greene county property in a tract, of land in Darke county, the partition of the said Darke county land, and averred that each of the plaintiffs and defendants in the action other than Trollinger had receipted upon the partition docket in the sheriff’s office of Darke county for his respective share from the proceeds of the said real estate.

In his cross-petition Trollinger alleged that he was the owner of and in possession of the real estate described in the petition, being the owner in fee simple therein, alleged that the plaintiff and the other defendants in the action claim interests adverse to himself, and prayed that his title be forever quieted against the same.

A demurrer was filed on behalf of Olevia May Judy and the other defendants, except Trollinger, to the second and third defenses in Trollinger’s *581answer, and also to Trollinger’s cross-petition. This demurrer was overruled.

The plaintiff and all defendants in the action except Trollinger then filed a reply, admitting the facts set forth in Trollinger’s answer with regard to the sale of the Greene county property under court decree, and not denying the allegation that all of the defendants in this Greene county action, except Trollinger, were notified of the application .for the said sale, but denied that the court had jurisdiction of the subject-matter of the action, upon the ground that the law under which the sale of 1860 was executed was unconstitutional. The reply also denied the regularity and validity of the sale proceedings in the Greene county case.

In the reply to the third defense of the answer the plaintiff and all defendants except Trollinger denied that any of them had receipted for or received any money from the sheriff of Darke county in the second partition case, and denied the right of Trollinger to have his title to the said land quieted, on the ground that the act of 1859 of the General Assembly was retroactive and invalid.

Demurrer was filed by Trollinger to the reply of plaintiff, on the ground that it did not constitute a defense to the answer.

The court of common pleas sustained the demurrer, dismissed the petition, and rendered judgment for Trollinger on his cross-petition. The judgment was affirmed in the Court of Appeals. Error was prosecuted to this court.

*Mr. Philetus Smith; Mr. C. H. Kyle,*and *Mr. W. H. McLellan, Jr.,*for plaintiffs in error.

*582*Mr. Marcus Shoup, for*defendant in error.

By the Court.

Plaintiff in error challenges the judgment of the Court of Appeals upon the ground, first, that the act of 1859 under which the sale of the Greene county property was made was invalid and unconstitutional, as being in conflict with Section 19, Article 1, and Section 28, Article 2, of the Ohio Constitution. These provisions of the Constitution, in so far as pertinent, read as follows:

Section 19, Article 1: “Private property shall ever be held inviolate, but subservient to the public welfare. * * *”

Section 28, Article 2: “The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts. * * *”

Plaintiff in error’s contention is that the Legislature could not, by any act passed after the will was made, affect the execution of the provisions of Isaac Wilson’s will. He claims that the Legislature has no authority to destroy the right of Isaac Wilson to have the provisions of his will executed as he wrote them, and that such is the result if this law is upheld. The constitutionality of the act, however, has been sustained. *Nimmons*v. *Westfall,*33 Ohio St. 213; *Oyler*v. *Scanlan,*33 Ohio St. 308; *Bennett*v. *Fleming,*105 Ohio St. 352, at page 363, 137 N. E. 900.

Exactly the same question was raised in the first two of the above cases, namely, that this law was retroactive, and hence violated the above-quoted sections of the Constitution. The case of *Nimmons*v. *Westfall, supra,*held in 'Section 7 of the syllabus:

> “The act of'April 4, 1859 (S. & C. 550), and the *583supplemental acts of March 30, 1864 (S. & S. 346), and April 13, 1865 (S. & S. 347), in so far as they affect and apply to estates created subsequent to their passage, are not in contravention of Section 19, of Article 1, of the Constitution of this state.”

*Oyler*v. *Scanlan, supra,*held in the second paragraph of the syllabus:

> “2. The act of April 4, 1859 (S. & C. 550), and acts amendatory thereto of March 30, 1864, and April 13, 1865, are not unconstitutional as to estates vesting after the passage of those acts.”

It is true that each of the wills in the *Nimmons*and *Oyler cases*was executed after the passage of the act, and not, as Isaac Wilson’s, before the passage of the act; but we fail to see that this affects the problem inasmuch as the will speaks, not from the time of execution, but from the time of the death of the testator. 28 Ruling Case Law, p. 283, Section 255; *Oyler*v. *Scanlan,*33 Ohio St., 308, at page 311; *Baker*v. *Baker,*51 Ohio St., 217, at page 222. Isaac Wilson died upon April 10, 1860, after the act in question was in full force and effect.

Plaintiffs in error maintain-, secondly, that the sale in question could not bind Olevia May Judy, since she was not born in 1869. However, she was bound by the proceedings in Greene county under the doctrine of virtual representation. *Bennett*v. *Fleming,*105 Ohio St. 352, 137 N. E. 900. The second paragraph of the syllabus of the *Bennett Case*is as follows:

> “Persons having a remote, contingent, or expectant interest in realty are bound by the judgment rendered in an action concerning the property, although not made parties to the suit, if the holder *584of the first estate of inheritance is a party. Estates limited over to persons not in being are represented by the living owner of the first estate of inheritance, so that a decree in a suit to which the first holder, a living person, is made a party, will conclude the rights of after-born remaindermen.”

Plaintiffs in error next contend that the sale of the G-reene county land was irregular, upon the ground that the law as to service upon the minors was not complied with.

The original act providing for the sale of entailed or life estates is found in chapter 41, pp. 550 to 552, inclusive, of volume 1 of Swan & Critchfield’s Revised Statutes of Ohio. Section 2 of that act provides in part as follows:

> “The same notice shall be given to defendants of the application for the sale as now is or may hereafter be required in cases of petitions of administrators for authority to sell real estate for the payment of debts.”

Examining the provision then in force as to notice required to be given to defendants in a suit by an administrator to sell real estate for the payment of debts (1 Swan *&*Critchfield’s Revised Statutes of Ohio, p. 590), we find:

> “Notice in writing of the petition, and of the time and place of hearing the same, or subpoenas in chancery, shall be served as in chancery, upon the defendants whose names and places of residence are. known and who reside in this state, at least fourteen days before the court shall make an order for the sale of the real estate mentioned in the petition: Provided, that if all persons interested signify, in writing, their assent to such *585sale, *the notice and subpoena*may be dispensed with. Testamentary guardians, and guardians appointed by tbe court, may assent, in tbe place of tbeir wards, to the sale.”

In this ease all persons interested assented to tbe sale.

This provision is again emphasized by Section 4 of tbe original Entailment Act, S. & C. 550, which reads as follows:

> “All parties in interest may appear voluntarily and consent in writing to such sale, and testamentary guardians and guardians *appointed by the court of probate,*may assent, in tbe place of tbeir wards, to tbe sale.”

Tbe record shows that Samuel Judy, guardian, appointed by tbe probate court, filed bis formal consent to the sale. Hence, when Samuel Judy waived notice and gave bis consent to tbe sale, he acted under tbe plain authority of tbe statute.

' Tbe plaintiffs in error contend that Samuel Judy, when he filed his waiver of notice and entered bis appearance, did not in terms waive notice upon bis wards, nor enter appearance for them. This contention is borne out by tbe record, the answer of Samuel Judy, guardian, in tbe pertinent part reading as follows:

> “And now comes tbe said Samuel H. Judy, defendant, and, waiving tbe service of notice of tbe pendency and prayer of tbe petition of said Joshua Judy and Martha J. Judy, plaintiffs, hereby enters bis appearance to said petition, and for answer thereto says it is true, as alleged in said petition, that be is tbe duly appointed and qualified guardian of tbe estates of each and all of his codefendants, *586to wit, the said Kossuth Judy, Florence A. Judy, Henry C. Judy, Ohio Belle Judy, Wilson L. Judy, Mary E. Judy, Uriah B. Judy, Oliver C. Judy, and Frank W. Judy; that a sale of said premises would be for the benefit of the said Martha J. Judy, and will do no injury to the devisees in remainder, his wards aforesaid, and he as such guardian for and in behalf of each and all of his said wards hereby consents to the sale of the real estate in the petition described as therein prayed.”

If Samuel Judy were in this case in any other capacity than that of guardian, if for instance he were defendant in his own interest, this objection might have some weight; however, he is joined as a party as guardian only, and enters his appearance as guardian only. The record as a whole shows that the case proceeded upon the specific theory that Samuel H. Judy was acting on behalf of his wards as guardian. The objection at best is purely technical. A decree was entered, and the decree of the court is presumed to be based upon the finding of all facts necessary to the validity of the decree. *State, on Complaint of Cook,*v. *Cook,*66 Ohio St. 566, 64 N. E. 567, 58 L. R. A. 625; *Bly*v. *Smith, Sheriff,*94 Ohio St. 110, 113 N. E. 659. In this case the court issued the decree, and hence it is presumed that Samuel Judy acted for his wards in waiving notice and entering appearance. Moreover, the reply does not deny that the wards received due notice.

We hold, therefore, that the sale of the G-reene county land was regular according to the law in .force in 1869.

Plaintiffs in error further attack the proceed*587ings on the ground, that no guardian *ad litem*was appointed. However, Section 127 of the original Entailment Acts, Swan *&*Critehfield’s Statutes, c. 43; p. 590, provides as follows:

> “It shall not be necessary, unless the petition is contested, to appoint guardians *ad litem*for the infant defendants; and no such guardian shall have authority to waive notice or service of subpoena.”

The petition was not contested in the Greene county case.

Plaintiff in error next claims that the master commissioner appointed to effect the sale, and Uriah Wilson, who bought the property, were both ineligible, because they happened to be executors of Isaac Wilson. This contention is disposed of by the fact that the record does not show that either William H. Wilson, who was first appointed master commissioner, or Uriah Wilson, who succeeded William H. Wilson, was an executor of Isaac Wilson.

The answer of Trollinger set up as a third defense the fact that these defendants had receipted for their respective shares from the proceeds of the real estate in Darke county, which was bought with the proceeds of the sale of the land in Greene county.

In reply the plaintiff and the other defendants, except Trollinger, deny that any or either of them receipted for or received any money from the sheriff of Darke county in the said case. This reply is inconclusive, for the parties in question may have received notes or some form of security and payment, even if they did not receive money from the sheriff of Darke county. Hence upon this *588feature of the case the reply is not good against demurrer.

The demurrer to the reply was properly sustained and the judgment of the Court of Appeals is affirmed.

*Judgment affirmed.*

Marshall, C. J., Robinson, Jones, Matthias, Day and Allen, JJ., concur.

Wana maker, J., not participating.