#### Weeks et al., Appellants, *v.*Thompson et al., Appellees.

(Decided January 13, *1940.)*

*Mr. H. H. Hollencamp,*for appellants.

*Mr. Harry P. Jeffrey*and *Mr. William M. Hunter, Jr.,*for appellees.

Hornbeck, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court de*2nying plaintiffs, appellants herein, the right to partition certain real estate described in the petition.

Several grounds of error are assigned but they all are encompassed in the one question, namely, had the plaintiffs a vested interest and right of possession in the premises described in the petition at the time of the institution of their action and therefore the right of partition?

The source of title of defendants and plaintiffs, children and grandchildren of Henry J. Tinnerman, is his will. Testator died July 31, 1922, seized of the real estate described in the petition. Surviving him were his widow and six children, three sons and three daughters. A grandson, Calvin Tinnerman, mentioned in the will, died before the testator. Testator’s widow took under the law and was dead at the time of the institution of the present suit. The three sons of the testator, who survived him, were Henry Louis Tinnerman, Elmer F. Tinnerman and George C. Tinnerman, and the three daughters were Emma Christina C. Weeks, Mary Laura Louise Tinnerman Thompson and Iona S. Tinnerman (now Hunter).- At the time of the filing of the petition, two children of the testator had died, namely, Emma Christina C. Weeks and Henry Louis Tinnerman. Emma Christina C. Weeks left the following children, who now survive: Warner W. Weeks, Henry S. Weeks, Harold IT. Weeks and Pearl Stephens, plaintiffs. Henry Louis Tinnerman left one son, Clifford L. Tinnerman, who now sufvives. The other plaintiff is Henry H. Hollencamp who is possessed of the interest of Clifford L. Tinnerman by deed.

It is the claim of the plaintiffs that the children of the testator living at his death took a life estate in the real estate described in the petition; that the issue of any child took the share of such deceased child in fee simple upon his or her death; that the life estate of each child was extinguished upon the death of such child; and that the fee out of which the life estate arose *3was then vested in the surviving child or children of the life tenant. The plaintiffs in their brief also claim that the Common Pleas Court in case No. 58057 entered judgment and made distribution of the proceeds of sale in conformity to their claim in this action.

Defendants claim that:

‘ ‘ The said plaintiffs and defendants do not have such a present vested interest in the said real estate as will permit partition of the same and further that the interest of the said plaintiffs and defendants under the terms of the will of decedent will not permit of the partition of the real estate until after the death of the last child of the decedent.”

The trial judge adopted the construction of the will as contended by the defendants.

The germane parts of the will of Henry J. Tinnerman are as follows: Item III gave, devised and bequeathed to the wife of the testator, the entire net income from the residue of all testator’s property and estate, for and during her natural life. Inasmuch as she did not take under the will this item is pertinent only insofar as it is definitive of the interest which passes to the devisees and legatees under the other items of the will The exact language of item III defining that which is to pass to testator’s widow is “the entire net income from the residue of all my property and estate ****

Item IY is as follows:

“After the death of my said wife I give, devise and .bequeath to my three sons [naming them] * * * and to my three daughters [naming them] * * * and to my grandson, Calvin Tinnerman, the entire net income from the said residue of my said property and estate in item III of this will referred to, for and during the term of their lives, respectively, share and share alike, and upon the death of one or more of my said children or said grandson, leaving issue of his, her, or their bodies, I give, devise, bequeath the share or shares *4which such deceased ancestor or ancestors would have taken if then living, to his, her, or their children, then living, equally, share and share alike, absolutely and in fee simple.”

Item V:

“If any of my said children or said grandson should die without leaving any child or children living, then I give and bequeath the share or shares of such deceased legatee to those of my said children and said grandson, who are then living, for and during the term of his or her natural life in equal shares, and thereafter to the issue of his or her body absolutely and in fee simple, same as in item IV of this will.”

In item VII, the testator named his wife executrix and trustee of his will to hold his entire estate in trust and after directing her to pay his just debts and funeral expenses further provided that she should sell his Greene county farm and all of his personal property. From the proceeds of this sale, she was to convert the residence property of decedent in Dayton into a double house and erect on either side of such dwelling a double house. It was then provided that she should rent these properties. If these improvements were not made she was then to invest the entire amount of the proceeds from the sale of the Greene county farm in first mortgage securities.

Item VIII provided that after the death of testator’s wife, if the improvements provided in item VII had been made on testator’s real estate, his trustee should convey to each of his children and to his grandson for and during the lifetime of such child and grandson one of the seven residences to each, which residences “would then constitute three double houses and my single property on Henry street in the city of Dayton, or if said improvements are not made as provided, then pay to them the net rental income thereof for and during their lives respectively.”

At the outset, we are of opinion that the estates *5which the defendants and plaintiffs, children and in part the grandchildren of the testator, took under the will were adjudicated by the action of the Common Pleas Court in case No. 58057. However, plaintiffs did not plead *res judicata*or estoppel by judgment and therefore the proceedings and judgment in case No. 58057 were not admissible upon this theory and there is no issue on *res judicata. Meiss*v. *Gill,*44 Ohio St., 253, 6 N. E., 656.

No. 58057 was an action instituted by Henry L. Tinnerman and others against John C. Shea, as administrator and trustee of the estate of Henry J. Tinnerman, deceased, and others, for the purpose of selling certain real estate under the entailed estates act. Section 11925 *et seq.,*General Code. All parties in interest, devisees and legatees under the will of Henry J. Tinnerman, deceased, were made parties to this action and the minor defendants were represented and filed answers by guardians *ad litem.*It was appropriate that the court determine the interests of the parties. The court directed that all of the property described in the petition, except that which is described in the petition in the instant case, be sold and the proceeds thereof reinvested as provided in Section 11931, General Code.

All of the real estate described in the petition in case No. 58057 was owned at his decease by the testator, Henry J. Tinnerman, and passed by virtue of the terms of his will. Section 11930, General Code,- provides that:

“All money arising from such sales [namely of entailed estates], for purposes of descent, succession, reversion, or remainder, shall have the same character, and be governed by the same principles, as the estate sold, and pass according to the terms of the deed, will, or other instrument creating the estate.”

Paragraph 2 of the entry made pursuant to the proceedings to sell the real estate in case No. 58057 recited “that Henry. L. Tinnerman, Elmer Tinnerman, George Tinnerman, Emma Christina C. Weeks, Mary *6L. Tinnerman Anderson and Iona S. Tinnerman Hunter are the owners of an estate for life, with remainder to the issue of their bodies absolutely and in fee simple in the property described in the petition under the will of Henry J. Tinnerman, deceased * *

It is our opinion that the judgment entry from which we have heretofore quoted, directing the sale of the real estate and fixing the interests of the parties to that action, would be *res judicata,*if pleaded, and as the judgment is unreversed and unmodified would be effective and subsisting insofar as it speaks. The parties, subject-matter and one issue in case No. 58057 were the same as in the instant case.

After the real estate had been sold and the proceeds therefrom invested, “the successor trustee to Mr. Shea by appointment of the Common Pleas Court of Montgomery county, Ohio, in the action, for the proceeds derived from the sale of entailed real estate formerly belonging to Henry J. Tinnerman, deceased,” upon his motion and on order of the court, sold certain of the investments held by him as trustee and made distribution of the proceeds thereof. The court directed that the trustee distribute the proper share of the proceeds to the heirs of Emma Christina Weeks and that the balance be reinvested in accordance with the terms of the will and the laws of the state of Ohio relating to the investment of the trust funds.

The motion of the trustee upon which the court acted states that:

“Under the terms of said will upon the death of one or more of the children of the testator, leaving issue of his, her or their bodies, the share or shares which said deceased ancestor or ancestors would have taken passes to such grandchildren share and share alike, absolutely and in fee simple.”

The trustee further says that:

“Emma Christina Weeks was a daughter of the said Henry J. Tinnerman; that she is now deceased and that *7her children, Harold H. Weeks, Warner W. Weeks, Henry S. Weeks and Pearl Stephens, are entitled to a distribution of her share' of the personal property of the said trust estate under the terms of the said will as hereinbefore set forth * *

The successor trustee in his first account takes credit for distribution of the proportionate share of the trust *res*to the four children of Emma Christina Weeks. The account was duly approved and confirmed.

Later, on January 11, 1938, the successor trustee filed application requesting authority and direction to sell a sufficient amount of bonds in his possession so that he could make proper distribution to Clifford L. Tinnerman and to reinvest the balance of proceeds from such sale. The applicant recited that Henry L. Tinnerman, a son of Henry J. Tinnerman, deceased, had died leaving as issue of his body, Clifford L. Tinnerman, and that “under the terms of the will of the said deceased, upon the death of one or more of the children of the said decedent, leaving issue of his, hel- or their bodies the share of such child or children passes equally, share and share alike, in fee simple to the said grandchild or grandchildren. * * * It is necessary under the terms of the said will to make distribution of the personal property to Clifford L. Tinnerman from the personal property of said estate * *

The court on the same day made findings in conformity to the statements made in the foregoing application and issued the order as requested.

Thereafter, the fourth account of the successor trustee was filed on July 14, 1938, taking credit for distribution to Clifford L. Tinnerman, for his proportionate share of the trust *res*and this account was duly approved and confirmed.

If the defendants in this case were bound by the order of the court upon the applications heretofore recited and, if plaintiffs had set the judgment up in their petition, there could be no doubt that the estates *8of the plaintiffs had been fixed and determined as set out by them in their petition and that their title had been adjudicated.

It should be noted that the testator made no differentiation between his real estate and the proceeds to be derived from the sale thereof. In any event all of the assets which the successor trustee had in the trust *res*were proceeds from the sale of entailed real estate and were of necessity treated as such, both under the will and under the law. In no situation could this money be distributed except as provided by the will. It was in the status of the real estate sought to be partitioned. The court in the action to sell the entailed real estate did not refuse to sell the property sought to be partitioned because the interests of the parties therein were any different than in the real estate ordered sold but because it could not be found that such sale would be of benefit to those interested in the estate.

The entries upon the applications of the successor trustee, insofar as we can determine from the files, in the case, were made upon *ex parte*proceedings and without notice. Therefore, they would not be binding upon any of the devisees under the will of Henry J. Tinnerman, deceased, except those who took distribution by reason of such entries. They would also be binding upon the trustee.

The settlement of the accounts showing distribution to the children of Emma Christina Weeks, deceased, and to Clifford L. Tinnerman in probability would not be binding upon the other devisees under the will of Henry J. Tinnerman, deceased. 18 Ohio Jurisprudence, 431, Section 338; 40 Ohio Jurisprudence, 397, Section 152.

We have discussed the proceedings in case No. 58057 at considerable length not only to determine to what extent the orders therein were determinative of the issues presented here, but to direct attention to the fact that by that adjudication, the surviving children *9of the testator took life estates with remainder to the issue of their bodies absolutely and in fee simple under his will. There is some doubt if the determination is correct that the children of testator had life estates only, even though not binding on the defendants in this action. The entry in case No. 58057, if dispositive of the interests of the devisees, does not fix the time when the remainder to the issue of the bodies of the children of the testator is to vest.

Let us examine the will to find what the testator devised to his grandchildren. It should be noted that the subject-matter which was to pass to the widow in item III was the “entire net income” from the residue of all the property and estate of testator and this same subject-matter was that which was devised and bequeathed under item IV. There is not one word which could be construed to designate or refer to the corpus from which the net income was derived and which passed by items III, IV or V of the will.

The greatest possible latitude is accorded courts to discern the intent of a testator from the language employed in his will if it is uncertain or ambiguous but if that which is sought to be devised is named or identified, nothing else can pass under such devise.

We have not the slightest doubt that the testator intended to state that which would accomplish the devolution of the corpus of his estate, but all that he did was to provide where the “net income” from the corpus of his estate should go.

Let us look at item IV, deleting therefrom all surplusage :

“After the death of my wife, I give, devise and bequeath to my three sons and my three daughters, the *entire net income*from the said residue of my said property and estate in item III referred to, for and during the term of their lives respectively, share and share alike, and upon the death of one or more of my said children leaving issue of his, her or their bodies, I *10give, devise and *bequeath the share or shares which such deceased ancestor or ancestors would have taken if then living,*to Ms, her or their children, then living, equally, share and share alike, absolutely and in fee simple.” (Italics ours.)

The sole descriptive language defining that which is to pass to the children is that they take absolutely and in fee simple the share or shares which such deceased ancestor’ or ancestors, that is, their parents, children of the testator, would have taken if then living. What share could the ancestor or ancestors have taken if then living? Obviously nothing but their proportionate share in the net income and not in the corpus from which the income was realized. Certainly there is gross inconsistency in defining the share of the grandchildren, if income only, as an absolute fee-simple interest, and in the use of this language, if there was any subject-matter which would relate such language to the corpus of the estate, it would be clear that it was passing a remainder to the grandchildren of the testator upon their parents’ death.

Item V does no more to fix the estate which would eventually pass to the grandchildren of testator than did item IV. If the provision of item VIII had been invoked then the children of testator would have held shares which upon their death would, under the will, have carried the real estate to the grandchildren.

There is considerable reason to hold that the remainder, after the life estates, passed as undevised real estate, and that the children of the testator held not only life interests in the net income from the real estate under the will of testator but also had a remainder in fee in the real estate because it was not devised. Of course, in this situation, by the limitations of the will, their full enjoyment of the remainder would be limited and though they could dispose of it by gift, sale or by will they could not enjoy it except to the *11extent that they were entitled to the net income therefrom.

It might he urged that the trustee named in the will had the legal title to the estate which was held in trust and the devisees and legatees had the equitable title thereto. It is true that legal title to the corpus of the estate was in the trustee but the equitable title of the devisees was only in that which had been devised.

With the' foregoing observations as to the uncertainty in the will, we come to consider the determinative question to which counsel for the parties have devoted the most consideration in the briefs, *vis:*Were the plaintiffs’ estates in the property, sought to be partitioned at the time of the institution of their action, vested remainders with the right of possession?

Counsel for the plaintiffs has cited *Poor*v. *Barr,*77 Ohio St., 639, 84 N. E., 1131; *Bolton*v. *Ohio Natl. Bank,*50 Ohio St., 290, 33 N. E., 1115; *Lauer*v. *Green,*99 Ohio St., 20, 121 N. E., 821; *Tabler v. Wiseman,*2 Ohio St., 207; *Johnson*v. *Brown,*74 Kan., 346, 86 P., 503; *Eberle*v. *Gaier,*89 Ohio St., 118, 105 N. E., 282; *Wyman*v. *Newberry,*31 Ohio App., 317, 167 N. E., 414; *Kecheley*v. *Kecheley,*38 Ohio App., 61, 175 N. E., 237.

Counsel for defendants comment upon and undertake to distinguish some of the above-cited authorities and direct attention to 30 Ohio Jurisprudence, 851, Section 16.

We have given consideration to the briefs and cases cited. There is no doubt that the testator can prohibit or postpone partition of his estate, if his will requires such construction. Nor can reversioners or remainder-men have partition when there is an outstanding estate in all of the realty for life vested in a third party.

In the will under consideration if partition is to be postponed, it is because of the character of the estates created by the will and not because of any expressed intention of the testator. The whole matter is to be determined from the will. If the life estates of the *12children of testator were a collective interest in the whole and did not determine until the death of the last child of the testator then partition could not be ordered. On the other hand, if the life estate of a child of the testator terminated at his death and the remainder in fee vested in his issue, then living, the children of Emma 0. Weeks and the child of Henry L. Tinnerman succeeded to their parents’ share in the real estate in fee upon the death of their parents.

It is our judgment that it was the intent of the testator that his sons and daughters take a life estate in the property devised by item IV during their respective lives, and that upon the death of a child of the testator leaving issue of his body this life estate terminated and such issue took the parents ’ share in the realty. If a child of testator died without issue then his share in the net income passed to his surviving brothers and sisters.

We recognize that there are many inconsistent expressions in the various items of the will but it is the policy of the law to favor the earliest possible vesting of estates and upon fair consideration of all the will including items VII and VIII, it is consistent to say that the testator expected the life estate of any of his children to terminate upon the death of such child, and if such child left issue the fee thereupon to be vested in such issue. If one phase of item VIII had been observed the testator’s children would have possessed in severalty for life certain real estate and this specific real estate would have passed in fee to a child or children of testator’s child upon that child’s decease. This same purpose, no doubt, was in contemplation as to the property described in item IV. Item IV employs the language “for and during the term of their lives” referring to sons and daughters of the testator.

This, as claimed by defendants, indicates a term of their collective lives, but this language is immediately followed by the word, “respectively,” which, accord*13ing to Webster’s dictionary, means, “as relating to each.” Tbe item continues, “upon the death of *one*or more of my said children * * * leaving issue of his, her, or their bodies, I give, devise, bequeath the *share*or shares which such deceased ancestor or ancestors would have taken if then living, to his, her, or their children, then living.” (Italics ours.) The testator speaks of the death of “one” of his children leaving issue of his body in which event he gives such issue the share which his deceased ancestor or ancestors would have taken if then living. It is impossible to give meaning to the expression “upon the death of *one** * * of my said children leaving issue of” his body “I * ***# bequeath the share” which his ancestor would have taken if then living, if it be held that such child cannot take until after the death of all of the children of the testator. (Italics ours.)

It is likewise true that because of the use of the pronouns, his, her and their as defining bodies, there arises certain ambiguity and uncertainty.

Defendants urge that inasmuch as the entire net income is bequeathed to the children of the testator this implies that the income must be kept intact. The language will bear such construction but it also may mean that the entire net income is to be enjoyed only so long as all of the children shall live. This latter construction is more in harmony with all of the language of the will.

It is our conclusion then that the estate of the children of the testator living at his death were limited to life estates but that upon the death of any of said children the interest of that child passed in fee to his child or children, if any living.

Inasmuch as Emma Christina Weeks had children living at her death they take in fee the share in which she held a life estate, and as Henry L. Tinnerman left one child, Clifford L. Tinnerman, he took in fee simple the share of the estate of the testator in which his *14father held a life estate, and the plaintiff, Henry H. Hollencamp, succeeded to the interest of Clifford L. Tinnerman by virtue of his deed of conveyance.

It follows that the plaintiffs at the time of the institution of the action of partition had a vested interest in fee in the proportions heretofore set out in the real estate described in the petition and were entitled to the immediate possession thereof. They therefore had the right of partition and the court in refusing to grant the prayer of their petition erred to their prejudice.

The judgment will be reversed and cause remanded for further proceedings according to law.

*Judgment reversed and cause remanded.*

Geiger and Barnes, JJ., concur.