Opinion
Decided May 6, 1929.
Wills — Vesting of estates favored, but testator's intention to postpone vesting controls — Devise to son and his wife for life — Remainder to son's children or if such issue fail, to son's grandchildren — Remainder not vested, but contingent upon children surviving life tenants — Owner of undivided third interest in fee and life estate in remainder, may partition.
1. One who owns an undivided one-third interest in fee simple in a parcel of land and a life estate in the remaining two-thirds of said premises, is entitled to partition.
2. Under will, if, at termination of prior life estates, children of life tenants were all dead, "such issue" would "fail" within meaning of will, and grandchildren would take property.
3. The law favors the vesting of estates devised by will.
4. Unless apparent from four corners of will that testator's intention is otherwise, estate devised will vest at testator's death.
5. Intention of testator, as shown by will, that vesting of estate devised shall be postponed, will control.
6. Under will, remainder to children of life tenants held not vested, but contingent upon their surviving such life tenants.
APPEAL: Court of Appeals for Wood county.
Mr. William Dunipace and Mr. Lelan S. Middleton, for plaintiff.
Mr. Earl D. Bloom, for defendants.
This cause comes into this court on appeal from the court of common pleas. The plaintiff, Henry T. Kecheley, seeks a partition of certain real estate in which he owns a life estate by devise under a provision of the last will and testament of Mathias Kecheley. The provision reads as follows:
"To my son, Henry, I give the East forty (40) acres of the Damascus Township Farm and the thirty-six (36) acres, more or less, in the Grand Rapids Township Farm to have and to hold for the term of his natural life; he to pay all the taxes and assessments and maintain reasonable repairs. Also, the widow of this son, and mother of his children is to have the life estate in this property, or as long as she remains his widow. Upon the death of this son, and the death or remarriage of his widow, mother of his children, this property is to be divided, share and share alike, among his children, or, if such issue fail, among the surviving grandchildren."
Henry T. Kecheley and his wife, Carrie E. Kecheley, have three children, Harold M. Kecheley, 23 years of age, Mable Kecheley, who will be 21 years of age May, 1929, and Helen E. Kecheley, 19 years of age. Plaintiff's wife and his son, Harold M. Kecheley, executed and delivered deeds of conveyance of their interest to the plaintiff. By reason thereof plaintiff claims to own an estate in fee simple in an undivided one-third of the premises. If plaintiff's claim is well founded he would be entitled to partition. Tabler v. Wiseman, 2 Ohio St. 207.
Did the remainder vest in the children of Henry T. Kecheley at the death of the testator?
The remainder, after the termination of the life estates, goes to the children of Henry Kecheley, share and share alike, subject to the contingency that "if such issue fail" the remainder shall go to the surviving grandchildren, share and share alike. Under the terms of this will, if, at the time of the termination of the prior life estates, the children of Henry Kecheley were all dead, such "issue" would fail within the meaning of the language of the will, and the grandchildren of Henry Kecheley, living at the time of the termination of the life estates, would take the property. It is true that the law favors the vesting of estates, and unless it is apparent from the four corners of the will that the intention of the testator is otherwise, the estate devised will vest at the time of the testator's death; but where the intention of the testator, as shown by the will, is that the vesting of the estate shall be postponed, such intention will control. Tax Commission v. Commerce Guardian Trust Savings Bank, Exr., 24 Ohio App. 331, 157 N.E. 423; Bolton v. Bank, 50 Ohio St. 290, 293, 33 N.E. 1115.
The will in question provides for the gift of the remainder to a class, namely, plaintiff's children, in the first instance; but upon the happening of a certain contingency it shall pass to another class, namely, the surviving grandchildren. If all of the children of the plaintiff should be dead at the termination of the life estates, the remainder would go to the grandchildren then surviving. Those who constitute the class that will take the remainder cannot be determined until the termination of both of said life estates, and the vesting of the remainder is postponed until such time.
As the remainder did not vest in the children of plaintiff, his son had no estate to convey to him, and the plaintiff is only owner of his life estate and the life interest of his wife, which was transferred by her to him.
The plaintiff therefore is not entitled to partition.
Decree accordingly.
RICHARDS and LLOYD, JJ., concur.