#### Dungan *v.*Kline et al.

*Entailments*— Section *4200, Revised Statutes-*— -Issue *of donee in tall*— *No interest in lands entailed, when.*

Under Section 4200, Revised Statutes, the issue of a donee in tail, during the life of such donee, has no estate or interest in the lands entailed which he can alienate.

(No. 11433

Decided January 18, 1910.)

Error to the Circuit Court of Pickaway county.

On October 27, 1906, Etta Kline commenced an action in the court of common pleas of Pickaway county against the plaintiff in error, Harriet Dungan and others, asking for the partition of certain real estate in her petition described. Thereafter, to-wit: on November 22, 1906, Adolph G. Wilson also brought suit in said court of common pleas against said Plarriet Dungan and others, asking partition of the same lands. On motion these cases were consolidated and tried as one case. The lands of which partition was asked consisted of three tracts, two of which, by the will of Titus Dungan, had been devised to “Elizabeth Wilson and the heirs of her body,” and the other tract had been devised to said “Elizabeth Wilson and the heirs of her body” by one Mary Ann Kirkendall.. The devisors Titus Dungan and Mary Ann Kirkendall both died prior to June 18, 1883, and the will of each had been duly admitted to probate prior to that time. The devisee Elizabeth Wilson had seven children, among whom were two sons, William T. and George H. Wilson. William T. *372Wilson died on January 16, 1887, his mother Elizabeth Wilson surviving him. She died October 27, 1906. On July 4, 1878, during the lifetime of his mother, William T. Wilson deeded to one George Dungan an undivided one-seventh interest in the premises which had been devised to Elizabeth Wilson and the heirs of her body, and thereafter said George Dungan deeded the same to the plaintiff in error, Harriet Dungan. On June 18, 1883, George H. Wilson, his mother being then in full life, also deeded an undivided one-seventh interest in said lands to George Dungan, which interest was subsequently deeded by said George Dungan to one John Schleyer and • by the latter to Harriet Dungan, the plaintiff in error. George H. Wilson died in October, 1896, ten years prior to the death of his mother Elizabeth Wilson. The deeds of William T. and George H. Wilson, although containing no covenants of general warranty, contained recitals that would perhaps estop each of them, if living, from asserting title to the property therein described. The controversy in this case is between the children of William T. and George H. Wilson on the one side, and Harriet Dungan the plaintiff in error on the other side. .The children of William T. and George H. Wilson claim to be the owners of, and entitled to such interest in the real estate to be partitioned, as would have descended to their fathers William T. and George H. Wilson respectively, if they had survived their mother Elizabeth Wilson, the first donee in tail. Harriet Dungan, plaintiff in error, claims title to the same premises under and by *373virtue of the alleged conveyances made as aforesaid by said William T. and George H. Wilson in their lifetime, and she further contends that the children of the said William T. and George H. Wilson, because of the recitals in said conveyances, are now estopped from claiming any interest in or title to the premises sought to be partitioned. In both the court of common pleas and the circuit court — to which latter court the case was taken on appeal — -this claim of Harriet Dungan was determined against her. She now prosecutes error to this court asking a reversal of the judgment of the circuit court.

*Mr. Clarence Curtain*and *Mr. E. A. Brown,*for plaintiff in error.

It can not be presumed that the testators intended to adopt the rules of the common law for the construction of their wills and thereby postpone the vesting of the fee simple title in the issue of Elizabeth N. Wilson until the' time of her death. The only presumption that can be indulged is that the testators by devising to Elizabeth N. Wilson an estate in fee tail intended thereby that such estate should “be and remain an absolute estate in fee simple to” her “issue.” *Phillips*v. *Herron,*55 Ohio St., 489.

We think our supreme court in *Pollock*v. *Speidel, 27*Ohio St., 86, has given to Section 4200 the construction for which we contend.

In New York estates tail have been abolished entirely and converted into estates in fee simple *374in the hands of the first taker, while in Ohio the estate is preserved as an estate tail in the hands of the first taker, but vests a fee simple in his issue. *Van Rensselaer*v. *Kearney,*11 How., 325.

It would seem, therefore, that the grandchildren of Elizabeth N. Wilson are by virtue of the statute prohibited from claiming any interest in the estate in controversy from either Titus Dungan or Mary Ann Kirkendall; if they are entitled to any interest in said estate it must-be by direct descent from their respective fathers; to hold otherwise, would, as we have already seen, be obnoxious to the plain language of Section 4200.

If, therefore, George H. Wilson and William T. Wilson, if now living, would be estopped by their deeds, their children, defendants in error in this case, are bound by the same estoppel. That they would be estopped, we think, is settled by this and other courts. *Magruder*v. *Esmay,*35 Ohio St., 221; *Van Rensselaer*v. *Kearney,*11 How., 325.

That the language contained in the deeds in question in this case is sufficient to create an estoppel is supported by the following cases decided in other states than Ohio: *Bridge & Terminal Railway Co.*v. *Whitney,*99 N. W. Rep., 530; *Wells*v. *Steckelberg, 72*N. W. Rep., 866; *Hagensick*v. *Castor,*73 N. W. Rep., 932; *Lindsay*v. *Freeman,*18 S. W. Rep., 727; *Scates*v. *Fohn,*59 S. W. Rep., 838; *Garrett*v. *Christopher,*12 S. W. Rep., 67; *Balch*v. *Arnold,*59 Pac. Rep., 436; *Habig*v. *Dodge, 25*N. E. Rep., ,182.

*375*Mr. Barton Walters; Mr. John P. Phillips; Mr. Charles H. May*and *Mr. James I. Boulger,*for defendants in error.

A careful analysis of Section 4200 will show that its object and meaning have been wholly misconceived by counsel for plaintiff in error and that no view of it can be taken which will in any way aid their contention. At the outset it must be noted that this section is twofold in its character. On the one hand it is designed to prevent perpetuities, and on the other to restrict the entailment of estates to the issue (not immediate issue) of the first donee in tail.

It will be noted that in their argument counsel seem wholly to ignore the presence of the word “descendants” in this statute. *Turley*v. *Turley,*11 Ohio St., 173; *McArthur*v. *Scott,*113 U. S., 340.

We very much doubt if it can be plausibly urged that estates tail *per se'*infringe the rule against remoteness; for, it is remoteness rather than perpetuities that are dispensed with under the rule against perpetuities, (Gray on Rule Against Perpetuities, Sec. 91) because the rule at common law was only directed against future “contingent interests” and not against vested interests.

For the extent to which remoteness is tolerated under the Ohio statute see *Gibson*v. *McNeely,*11 Ohio St., 131.

It will be noted that the word “immediate” does not precede “issue” in the second clause of Section 4200, and this is a very significant fact when we consider that in the same section of the statutes this word is used to modify “issue” when the latter *376word is used in what we regard as an entirely different connection. There must have been some reason for its omission, and we think that it was intended that issue should, where it appears in the last clause, include lineal descendants indefinitely. It should really be treated as synonymous with the words heirs of the body. *Holland*v. *Adams,*3 Gray, 193; *Weybright*v. *Powell,*39 Atl. Rep., 421; *Hertz*v. *Abrahams, 36 S.*E. Rep., 409; 11 Am. & Eng. Ency. Law (1 ed.), 869; *McCann*v. *McCann,*80 Am. St. Rep., 846; 2 Jarman on Wills, 636; *Turley*v. *Turley,*11 Ohio St., 179; *Adams*v. *Law,*17 How, 421; *Dexter*v. *Inches,*147 Mass., 324.

To show that this is the view of the courts of Ohio we need only to refer to the case of *King’s Heirs*v. *King’s Admr.,*12 Ohio, 390.

In *Harkness*v. *Corning,*24 Ohio St., 416, the court in effect hold that the estate tail is not enlarged into an absolute estate in fee simple until the termination of the interest of the first donee in tail. *Richardson*v. *Stockyards Co.,*8 N. P., 219; *Pollock*v. *Speidel,*17 Ohio St., 447, 27 Ohio St., 94.

It must not be forgotten that the statute *de donis*did not at common law grant the estate, but it did create the fee tail; that is to say, while the donor carved out a certain estate, the statute gave it its attributes. Instead of á conditional fee it became a fee tail, and the first donee took as purchaser and all the others by descent. The donor gave or granted nothing but a fee tail, and that to no one but the first donee; then the statute directed the manner it should go. *Pollock*v. *377*Speidel, 17*Ohio St., 449; *Perry*v. *Kline, 12*Cush., 127; *Darling*v. *Hippel,*12 O. C. D., 754, 60 Ohio St., 591; Cruise’s Digest (3 Am. ed.), 68; Williams on Real Property, *522; Washburn on Real Property, Section 198.

The whole question has been decided by the supreme court of Connecticut under a statute identically similar with the statute in question here. In *Harkness*v. *Corning, supra,*426, it is said that the Ohio act 'was copied substantially from a statute of Connecticut passed in 1784. *Dart*v. *Dart, 7*Conn., 250.

In addition to all this we. also claim that the only interest which it might be possible to urge existed in the children of Elizabeth Wilson during her lifetime was a contingent remainder. No title was to vest in them if they failed to survive their mother. The remainder comes within Fearne’s fourth clause of Contingent Remainders. 22 Am. & Eng. Plncy. Law (2 ed.), 397; 2 Washburn on Real Property (6 ed.), Sections 1557, 1562; *Spear*v. *Fogg,*32 Atl. Rep., 791; *Hunt*v. *Hall,*37 Me., 363; *Richardson*v. *Wheatland, 7*Metc., 169; *Putnam*v. *Gleason,*99 Mass., 454; *Johnson*v. *Jacobs,*11 Bush, 646; *Feltman*v. *Butts,*8 Bush, 115; *Emmerson*v. *Flughes,*19 S. W. Rep., 979; *Mudge*v. *Hammill,*43 Atl. Rep., 544; *Moore*v. *Littel,*40 Barb., 488.

Even if it should be admitted, however, that the interests should be regarded as vested, as claimed, they were subject to be divested upon the failure of the contingency, viz^: that the said children should outlive their parent, Elizabeth Wilson, and having been divested *by*the death of the *378children before Elizabeth Wilson, the grantees of the children were divested of their interests. *Bank*v. *Ballard’s Assignee,*4 Am. St. Rep., 160; *L’Etourneau*v. *Henquenet,*28 Am. St. Rep., 310.

We think we have shown that estoppel can not be invoked here, but we also wish to say that even if our foregoing argument should not have been correct, nevertheless the deed of Wm. T. Wilson, which the record shows was merely one of quit-claim, would not estop his daughter Florence Emma Wilson. *Hanrick*v. *Patrick,*119 U. S., 156; *White*v. *Brocaw,*14 Ohio St., 339; *Locke*v. *White,*89 Ind., 492; *Bryan*v. *Uland,*101 Ind., 477; *Hart*v. *Gregg,*32 Ohio St., 502; *Boyd*v. *Longworth,*11 Ohio, 253; *Kinsman*v. *Loomis & Wood,*11 Ohio, 475.

Crew, J.

If the estate tail devised to Elizabeth Wilson was not alienable by the issue in tail during her life, subject to her tenancy therein, then the grants made by William T. Wilson and George H. Wilson, who both died before their mother, were wholly void and no estoppel thereunder can be invoked ag'ainst their children. Therefore the decision of this case, upon the facts as presented by the record herein, depends primarily upon whether or not William T. and George H. Wilson during the lifetime of their mother, were severally seized of a fee simple estate in the premises which they respectively assumed to convey to George Dungan. That under the wills of Titus Dungan and Mary Ann Kirkendall, Elizabeth Wilson, as devisee, took an estate tail in the premises in controversy, is conceded, and the contention of *379Harriet Dungan, plaintiff in error, is, that under the devises therein made to Elizabeth Wilson and the heirs of her body, that William T. and George H. Wilson as her children, upon the death of said testators, each immediately, by force of the provisions of Section 4200, Revised Statutes, became entitled to and vested with an absolute estate in fee simple to a one-seventh part of the premises so devised to their mother, Elizabeth Wilson, as first donee in tail. On the other hand, it is 'claimed by the children of William T. and George H. Wilson, all of whom are defendants in error herein, that their fathers, during the lifetime of Elizabeth Wilson, had no estate or interest in said premises which they of right could alienate or convey, that until the death of said Elizabeth Wilson, the interest of William T. and George H. Wilson in said premises was that of a mere possibility or expectancy which could ripen into title and become a vested estate or interest, only in the event that they survived their mother, Elizabeth Wilson, the first donee in tail. In both the court of common pleas and in the circuit court, the contention of Harriet Dungan was held to be erroneous and was determined against her, and in this we think there was no error. Section 4200, Revised Statutes, provides as follows: “No estate in fee simple, fee tail, or any lesser estate, in lands or tenements, lying within this state, shall be given or granted, by deed or will, to any person or persons but such as are in being, or to the immediate issue or descendants of such as are in being at the time of making such deed or will; and all estates given in tail shall be and remain an *380absolute estate in fee simple to the issue of the first donee in tail.” Counsel for plaintiff in error, in discussing the effect of this statute, say in their brief: “The first part of the section, preceding the semi-colon, permits the granting of a limited estate tail and it forbids the granting of the same to persons who are in fact more remote than the immediate issue of persons in being at the time said grant is made.” This claim, ignoring as it does the word “descendants” found in the statute, is in part at least clearly erroneous. It will be observed that by the language of the first clause of this section the entailment by deed or will, is not restricted to persons in being, or to the *immediate issue*of such as are in being, but the limitation is, to persons in being, “or to the immediate issue *-or descendants*of such as are in being at the time of making such deed or will.” In *Turley*v. *Turley et al.,*11 Ohio St., 173, this court, when interpreting the language of this statute, after setting out a copy thereof, say: “What is to be understood by the terms, ‘immediate issue/ and ‘immediate descendants/ as employed in the above recited act?

“The counsel for the plaintiff insists that both terms indicate only one and the same class of persons; that is, *living children of Mrs. Turley,*and that neither include living children of *her predeceased children.*

“The presumption always is, that every word in a statute is designed to have *some*effect, and hence the rule, that ‘in putting a construction upon any statute, every part shall be regarded, and it shall be so expounded, if practicable, as to give some *381effect to *every part of it.’ Commonwealth*v. Alger, *7*Cushing, 89.

“The word ‘issue/ without the qualifying word, ‘immediate/ would, undoubtedly, include grandchildren and great-grandchildren of the person -to whose issue the bequest is made. 2 Williams on Ex., 252; 2 Jarman on Wills, 255, note. But we incline to the opinion that the qualifying word ‘immediate’ prefixed to it in the clause referred to, limits the phrase to the children merely of the person in being, etc.; and we do this the more readily, as we are satisfied that the remoter lineal descendants, if living at the death of the person in being when the will was made, are included in the phrase,- ‘immediate descendants.’

“In order to determine whether the words, ‘issue,’ and ‘descendants,’ used in the act, refer only to one and the same class of persons, or whether the one is more extensive than the other, we may very properly look to the entire law and its title, as well as the mischief or defect it was designed to remedy; and also to the other statutes in relation to the inheritance and transmission of estates. * * *

“But there is a plain and broad distinction between the terms ‘children’ and ‘descendants,’ the one indicating only lineal descendants, while the other includes both lineal and collateral relations — all, in short, that would then take the estate under the statute of descents. * * * All such persons may not be *in fact,*but they are *in*law, the descendants of the person from whom they receive the estate.” This interpretation of the statute was followed and approved by the *382supreme court of the United States in *McArthur et al.*v. *Scott et al.,*113 U. S., 340. In support of their contention that the statute forbids devises to persons more remote than the *children*of the first donee in tail, counsel for plaintiff in error seem to place much reliance upon the following expression found in the opinion of Shauck, J., in *Phillips et al.*v. *Herron et al.,*55 Ohio St., 489, where it is said: “It (Section 4200) forbids devises to persons who are in fact more remote than the immediate issue of persons in being at the time of the testator’s death.” While this lang-uage perhaps sufficiently defines the rule of the statute as applicable to the facts of that particular cas.e,' it is not, as clearly appears from the foregoing cases, a correct and accurate statement of the general rule and scope of the statute. And it obviously was not so intended by the author of that opinion, else he would hardly have cited in support of such statement, *Turley*v. *Turley,*and *McArthur*v. *Scott, supra.*

That, during the life of Elizabeth Wilson, first donee in tail, her children William T. and George H. Wilson had no estate or interest in the premises devised to her which they of right could alien or convey, while not heretofore directly decided by this court has, we think, by necessary implication, been so determined in several cases, In *Pollock*v. *Speidel, 17*Ohio St., 448, in discussing the scope and effect of the act of 1811 (now Section 4200, Revised Statutes), Scott, J., says: “The statute recognizes the first donee in tail as holding an estate for life only, as tenant in tail; and does not convert the estate into a fee *383simple till it reaches the hands of his issue.” While it would seem to be, and was, incorrect to speak of the first donee in tail as holding an estate for life, as tenant in tail, this apparent inaccuracy of statement is sufficiently, and we think correctly explained in *Harkness*v. *Corning,*24 Ohio St., 428, where the court say:, *“A*somewhat similar expression is used by the learned judge delivering the opinion of this court in *Pollock*v. *Speidel,*17 Ohio St., 447. The controversy in that case was between the issue of the donee and the defendant, claiming under a conveyance from the donee, and the question was as to the quantity of interest conveyed. The judge said the 'statute recognizes the first donee in tail as holding an estate for life only, as tenant in tail.’ The idea intended to be expressed was that the donee, holding only as tenant in tail, could not convey an estate that would endure beyond his own life. To give to the expression the meaning claimed by plaintiff’s counsel, that the donee took a mere life estate, would render the opinion not only inconsistent with itself, but with the fourth proposition of the syllabus.” This case of *Harkness*v. *Corning, supra,*is also decisive of the proposition, that the statute does not become operative until the estate passes by the first donee in tail and reaches the issue of such donee, when, as said in the opinion at page 426, on the determination of the interest of such donee and of such rights as the law annexes to his interest while held by him, the*^ statute then enlarges the estate tail in the hands of such issue into an absolute estate in fee simple. When the case of *Pollock*v. *Speidel, supra,*was *384a second time before this court, 27 Ohio St., 86, the court, in considering and discussing the effect of 'the last .paragraph of the statute which reads, “and all estates given in tail shall be and remain an absolute estate in fee simple to the issue of the first donee in tail,” say that the issue of a tenant in tail ‘‘has no leg-al rights in the premises during the tenant’s life. The issue takes', if at all, by descent as heir of the body, and the maxim is *nemo est hares viventis.’*” The action was one in ejectment, and was brought by the children of one James Pollock, who was the son of John Pollock, Jr., first donee in tail, against the defendant to recover possession of certain real estate of which they claimed to be seized in fee simple as heirs of said James Pollock. The defendant denied the title of plaintiffs and alleged title in himself under a conveyance from said James Pollock by deed of general warranty executed June 30, 1831. While it does not positively and affirmatively appear at-what time John Pollock, Jr., the first donee in tail died, and the court in the opinion so sta,te, yet it -does appear from the agreed statement of facts therein: “III. That John Pollock, Jr., left some five children besides James Pollock, the grantee in the deed dated June 30, 1831.” We therefore conclude that the fair and reasonable inference is, and that the fact was, that John Pollock, Jr., the father of James, died before he did, and as, upon the death of his father, James as issue in tail would, thereupon take, by force of the statute an absolute estate in fee simple, with full power of alienation, he would of course, as would also his heirs, be estopped by his deed of *385June 30, 1831, which was a deed of general warranty, and this would be so, as said by the court in that case, even though John Pollock the first donee in tail was living at the time of its execution. Upon no other theory, than that James survived his father, can the decision in this case be reconciled with other decisions of this court, or be supported and upheld. Our statute of entailments, Section 4200, substantially in its present form, was copied from the statute of Connecticut, and the precise question we are now considering was decided *by the supreme court of that state in *Dart*v. *Dart, 7*Conn., 250, where it is said by Peters, J.: *“2.*What estate passed from the plaintiff, by his deed to the releasees? By the common law, a release is a secondary conveyance, and is a discharge of a man’s right in land or tenements to another, who hath some former estate in possession. Shep. Touch., 318, 2 Bl. Com., 328. But in this state, a release is considered as a primary conveyance, and passes all the right of the releasor to the releasee, provided no other person be in possession adversely; and operates as a conveyance without warranty. 1 Sw. Dig., 133. But if he have no right, nothing passes, not even a *chose in action.*What estate, then, had tjie issue of the first donee in tail, during *his*life? My answer is, none. The plaintiff could, therefore, convey none. Such issue is only an heir apparent or presumptive. His title is the bare possibility, or mere chance, of becoming *eventually*the heir in tail; for the maxim is, *(nemo est hceres viventis.’*And it is a well settled rule, that a mere possibility can not be released or conveyed; and the *386reason thereof is, that a release supposes a right in being. Shep. Touch., 319, Bac. Abr. Tit. Release. H.” It follows from the foregoing, we think, that the judgment of the circuit court in the present case was right and should be affirmed.

*Judgment affirmed.*

Summers, C. J., Spear, Davis, Shauck, and Price, JJ., concur.