#### Piatt *v.*Sinton et al.

1: A devise by a testator of *all*of his property, of every description, whether real, personal or mixed, after paying all his just debts, is a devise' of the fee, without the aid of a statute declaring such to be the eifect of the devise.

2. Where there is a devise in fee, with a provision in the will that in -case the devisee should die without leaving any legitimate heirs of her body, then the estate should go over to persons named, the fee taken by the first devisee is determinable only on the contingency of her dying without leaving such heirs living at the time of her death. *Mies*v. *Gray*(12 Ohio St. 320), followed.

Error to the Superior Court of Cincinnati.

The plaintiff in error, Lucinda Francis Piatt, who was the plaintiff below, is the devisee of William Piatt, whose will *354bears date, March 2, 1832, and was admitted to probate in 1834. The testator was the owner in fee simple of the land in controversy.

The dispositive provisions of the will are as follows:

“ I will and bequeath to Lucinda Francis Piatt, now at the school of Mrs. Ryland, in this place, all of my property of every description, whether real, personal, or mixed, after paying all mp just debts; excepting, however, such other bequests as are hereinafter named, viz.: To my nephew', Daniel S. Piatt, son of my deceased brother, Daniel Piatt, my fowling piece, which was presented to me by Colonel Riano, of the Spanish Royal Army ; then to my nephew, William Piatt, son of 'my deceased brother, Daniel Piatt, I will and Bequeath my sword and pistols, being the same which I used at the siege of New Orleans; these I wish to have retained in the family, if possible ; my wearing apparel I will and bequeath to E. Demond Piatt, William Piatt, and Daniel S. Piatt, sons of my deceased brother, Daniel Piatt, to be equally divided between them ; and in case the aforesaid Lucinda Francis Piatt should die without leaving any legitimate heirs of her body, then I wall and bequeath all my property, of every description, such as would be granted to her by this will, unto Catharine Wheeler, E. Demond Piatt, William Piatt, and Daniel S. Piatt, children and heirs of my deceased brother, Daniel Piatt, to be equally divided.”

In July, 1844, the plaintiff uniting with her husband conveyed, for the consideration of $3,100, a parcel of the real estate devised to her, to John C. Wright, by a deed in fee simple, with full covenants of warranty.

In 1866, the widow and heirs of Wright, by like deed conveyed the same premises to the defendant, David Sinton.

It is charged in the petition, in substance, that the plaintiff only in fact sold an estate for and during her life in the premises; and that the deed in fee simple was executed by mistake and in ignorance of her rights. It is also charged that Sinton purchased with notice of her rights. The plaintiff also claims that she took by the devise only an estate during her natural life.

*355The court below found, “ that Lucinda Francis Piatt took a fee in the real estate described, in the petition, under and by the will of her testator, William Piatt, subject to be defeated only by her dying without leaving legitimate heirs of her body.”

And the court found the other issues joined for the defendants ; and rendered judgment accordingly.

On error, the superior court in general term affirmed the judgment; and the present petition in error is prosecuted in this court to reverse these judgments.

*Taylor &*Hollister, for plaintiff in error.

*J. H. Baldwin,*for defendant in error.

White, J.

We find no error in this case. The construction of the will now in controversy is governed by the decision in *Niles*v. *Gray,*12 Ohio St. 320. That case was decided in 1861, and has become aruleof property in this state, and we are not now disposed to reconsider it.

The will in that case, as well as the will now in question, was made prior to the passage of the act of March 3, 1834 (1 Curwen, 145), which declared, in effect, that a devise of lands, in a will thereafter made, should be construed to convey a fee simple, and that' the devisee should take all the estate which the devisor had in the property, unless it appeared hy express words or the manifest intent that a lesser estate was intended. The decision, therefore, in *Niles*v. *Gray,*was not founded upon that statute nor upon any subsequent one of like effect; but upon the terms of the will as construed without the aid of such legislation. The language in that case that was held to operate as a devise of the fee was “ the remaining part of my real property.” The language of the devise in the present case is “all of my property of every description, whether real, personal or mixed, after paying all of nay just debts;” and the devise over to the children and heirs of his deceased brother is of the same interest and estate that was given by the will to Lucinda, the first devisee.

The claim on behalf of Lucinda is that she took only a life *356estate. But it seems to us, that she took all the estate and interest that was subject to disposition by the testator, and that was liable for the payment of his debts, subject to be defeated on the happening of the contingency named in the will, when the estate is to go over to the persons named as the children and heirs of his deceased brother.

The contingency upon which the devise over takes effect, according to *Niles*v. *Gray,*is the death of the first devisee, Lucinda, without leaving legitimate heirs of her body or lineal descendants then living; and that until such contingency happens the fee is vested in the first devisee and her grantees.

"Whether the devise over will ever take effect cannot be determined until the plaintiff’s death ; but if it should never take effect, her grantee, Sinton, will, according to the principles decided in *Niles*v. *Gray,*hold an indefeasable estate, if the deed to him is valid.

That the deed is valid was- found by the court below upon the evidence; and we see nothing in the record to warrant us in disturbing that finding.

*Judgment affirmed.*