Lucas Common Pleas.

life, in express terms, a power of disposal annexed does not enlarge it to a fee, but where, to a general devise, without any specification of the quantity of interest, an absolute power of disposal is annexed, the devisee takes a fee.' *

*

"It is true that here is a distinction between the will of Lord Sterling, which was the subject of construction in the New York case, and that of William Logan Fisher, now before the court, in that in the New York case the first taker had the power to defeat the executory devise by a conveyance by deed, as well as by testamentary provision, while in this case there is a prohibition against conveyance, and only power to dispose of by will; but this distinction is not material, if Chancellor Kent correctly stated the law to be that where an estate is given to a man and the heirs of his body, with a power of disposal at his own will and pleasure, it carries with it an absolute ownership, repugnant to any limitation over and destruction of it."

There are cases which hold that the power of disposition in the first devisee, to have the effect of defeating the limitation over, must be general as to the means of disposition, and that when the right of disposition is limited to any particular method, the limitation over will be good. But the weight of authority, as stated by the master in this Pennsylvania case, is that where the first devisee has the absolute power of disposition, whether by deed or will, the limitation over cannot take effect.

Armstrong v. Kent, 21 N. J. Law 509, is a case in point. I will read from the opinion of the court on page 519:

"The testatrix by her will gave to her daughter, Eliza R. Armstrong, her real property absolutely, after the determination of a life estate previously devised to her husband, William Armstrong, and then gave her all the residue of her estate, being personal property, to her and her heirs forever. So far the devise is of a fee simple estate in the lands, and an absolute property in the personal estate. But this devise is followed by a proviso, if she should die 'without heirs and intestate,' then that the same should vest in Charles and Margaret and their heirs. If the words 'and intestate' had been omitted in the proviso, the estate devised to Eliza in the lands would have been a fee tail, with an executory devise over, to take effect on the contingency of Eliza's death without issue, for the word 'heirs' in this connection cannot be construed heirs general, because the devise over is to two of her heirs general, and must be construed to mean heirs of her body, or issue. And it is equally plain that the testatrix did not mean that the estate should vest in Charles and Margaret, on an indefinite failure of issue of Eliza, but on failure of issue at the time of her death.

"But the serious and only question involved in the case is as to the effect of the words 'and intestate,' upon the estate devised. The rule seems well settled, that where there is an absolute power of disposition

Finlay Brewing Co. v. Dick.

given by the will to the first taker, the limitation over upon his dying without heirs is void, as being inconsistent with the absolute estate, or power of disposition expressly given or necessarily implied: 4 Kent's Commentaries 264, Sec. 1, and cases there cited. The words 'and intestate' clearly imply a power in Eliza to devise and bequeath the estate given to her by the will; but it is contended by the complainants, that this is not an absolute power of disposition over the estate devised, and that therefore the limitation over is not void; and we are referred to the opinion of Savage, C. J., in Doe v. Howland, 8 Cow. 284, where he remarks, 'It is undoubtedly true that a devise, with power to convey a fee, carries a fee, though a devise with power to devise in fee, carries but a life estate.' I confess I am unable to see the force of the distinction laid down so emphatically by the learned judge in the case just cited, nor have I been able to find such distinction laid down elsewhere. A power to devise by will is as absolute a power as a power to convey, where conveyance means by deed of bargain and sale. But it must be borne in mind, that in the case of Doe v. Howland, the devise was an estate for life only, in the first taker, with power to sell part, and with power to devise the whole. Neither power, therefore, increased the quantum of estate in the first devisee. The case before us differs in this respect, for here is an absolute estate given in the first instance, attempted to be restrained or limited by a subsequent clause."

I will refer, without reading, to the following additional authorities: Gulliver v. Vaux, 8 De Gex M. & G. 166; Shaw v. Ford, 7 Ch. Div. L. R. 673; Ware v. Cann, 10 Barn. & Cr. 433; State v. Tolson, 73 Mo. 320; Janutsch v. Proctor, 48 Pa. St. 466; Karker's Appeal, 60 Pa. St. 141; Van Horne v. Campbell, 100 N. Y. 287 [3 N. E. Rep. 316]; Kelley v. Meins, 135 Mass. 231; Wilson v. Turner, 164 Ill. 398 [45 N. E. Rep. 820]; Jackson v. Bull, 10 Johns. 19; Ide v. Ide, 5 Mass. 500; Sevier v. Brown, Tenn. (2 Swan) 112; Hall v. Palmer, 87 Va. 354 [12 S. E. Rep. 618; 11 L. R. A. 610]; Mulvane v. Rude, 146 Ind. 476 [45 N. E. Rep. 659].

The principle of these cases and others to the same effect which might be cited, has been so generally recognized by the courts from the earliest period, that they must be followed, unless in Ohio a different rule has been established. I have not found a case in Ohio where the precise question which we have here has been considered. The Ohio cases are mostly cases where property is devised with power of disposition and there is a devise over of what remains on the death of the first devisee or where the power of disposition reserved to the first devisee is in favor of particular objects or for the accomplishment of particular purposes, which, as is held, does not create any repugnancy.

The cases particularly relied upon by defendant are. Baxter V. Bowyer, 19 Ohio St. 490 and Johnson v. Johnson, 51 Ohio St. 446 [38

Lucas Common Pleas.

N. E. Rep. 61]. In both of these cases it is held that the first devisee, who was the widow of the testator, took only a life estate. In neither case did the testator give to the widow power to will the property, and in both cases it is evident that the power to sell or dispose of the property which was given to the widow was given solely for her life support. The devise over was of what remained or was unconsumed at her death. Judge Welch, in delivering the opinion of a majority of the court in Baxter v. Bowyer, 19 Ohio St. 490, after referring to Jackson v. Bull, 10 Johns. 19; Jackson v. Robins, 16 Johns. 537 and Ide v. Ide, 5 Mass. 500, which are cited to support the plaintiff's contention in this case, says, on page 500:

"These and the like cases are clearly distinguishable from the present one. They are cases where the testator gives to the first devisee full dominion and control over the estate, and then, under the form of a limitation over, undertakes to make, as it were, a will for the first devisee, to take effect in case the first devisee should fail to make one for himself, or otherwise to dispose of the property. This the testator cannot do. Everyone has the right to dispose of his own property. To make one the absolute owner of my property, and at the same time retain any power in my own hands to control or dispose of it, is simply impossible. In the cases referred to, where the limitation was held to be void, the repugnancy was total and irreconcilable. The language of the will left no escape, in those cases, from the conclusion, that the testator intended to give the first devisee absolute dominion and control over the property. There was no escape, because the limitation itself, as well as the previous devise, necessarily implied such absolute power and dominion, by making the thing limited over, its existence or nonexistence, to depend upon the pleasure of the first devisee. Such a limitation cannot be sustained, because it is only a limitation in words, and not a limitation in fact, or in law. It is in legal effect what the will here would be if it had read: ‘I give all my property to my wife, and she may give to the presbytery of Cincinnati such part of it as she chooses to give.' Such is not the legal meaning and effect of the will under consideration. It simply gives the property to the wife, with remainder at her decease to the uses specified in items two and three. A majority of the court are satisfied that these provisions are not necessarily repugnant, but are reconcilable. upon the theory that the wife took a life estate and life maintenance, with an unrestricted right to the manner of enjoying the property, and with power to change the property into money, by sale, for the benefit of the estate; and that the limitations expectant upon her death are, therefore, valid and effectual."

In the case at bar it is necessarily implied from the will that whether or not Henry A. Dick shall get any of the estate depends upon the pleasure of Henry Dick. He is given the property absolutely. He may give

Finlay Brewing Co. v. Dick.

it by will to Henry A. Dick or to any other person, or he may not choose to make a will at all, and the property is limited over to Henry A. Dick only in case he shall choose not to make a will. In the language of Judge Welch, this is a "limitation in words and not in fact or in law."

I do not think that any of the Ohio cases are against the contention of the plaintiff, and these remarks of Judge Welch favor that contention. I hold, therefore, that Henry Dick has the full fee simple title to the premises in controversy free from any claim of Henry A. Dick or Emma A. King.

Even if the devise over to Henry A. Dick is to be regarded as valid, it must be conceded that whether it will ever take effect cannot be determined until the death of Henry Dick. It may never take effect, and it would be a serious question whether Emma A. King has now any claim or interest which she can assert in this action. Piatt v. Sinton, 37 Ohio St. 353; Darlington v. Compton, 11 Circ. Dec. 97 (20 R. 242).

The claim is also made by counsel for defendant that the payment to her is charged upon the estate devised to Henry Dick. I cannot so construe the will. It seems clear from the natural and grammatical construction of the language used that it is charged only on the estate attempted to be devised to Henry A. Dick.

My conclusion is that Emma A. King has no lien on the mortgaged premises, and the demurrer is therefore sustained.

MUNICIPAL CORPORATIONS.

[Hamilton Common Pleas, 1903.]

NORTH BEND (HAMLET) V. CINCINNATI, LAWRENCEBURG & AURORA ELECTRIC Ry. Co.

HAMLETS CANNOT SUE UNDER NEW CODE.

That class of municipal corporations known as hamlets, if they ever had a legal existence under the constitution, was abolished by the enactment of the new municipal code, and as their existence was destroyed and their power to maintain an action, taken away expressly by the repeal of Secs. 1546 to 1552 Rev. Stat., inclusive, they have no power now to bring suit.

Judge Dempsey and Stanley Struble, for plaintiff.

J. H. Shaffer and Stanley Shaffer, for defendant.

HOLLISTER, J.

It is decided in these cases that the class of municipal corporations known as hamlets, if that class ever had a legal existence under the constitution, was abolished by the enactment of the new municipal code.

The sections of the Revised Statutes, 1546 to 1552, inclusive, providing for the classification of municipal corporations were repealed. Section 1552, so repealed, read:

"Muncipal corporations, now or hereafter organized, are bodies. politic and corporate, under the name of the city of, the village of

or the hamlet of sue and be sued."

Hamilton Common Pleas.

as the case may be; and as such they may

As their very existence was destroyed and their power to maintain an action was taken away expressly, it is clear that a hamlet has now no power to bring a suit.

It is true that some of the old sections of the statutes relating to hamlets were not repealed expressly, but as the subject to which they relate no longer exists, they cannot be regarded as operative.

Whether the trustees of a hamlet which has not taken steps to become a village may maintain such actions as these, the court does not decide. The motions to dissolve the temporary restraining orders heretofore made in these cases are granted on the ground that the plaintiff bas not legal capacity to sue.

WILLS-PLEADINGS.

[Franklin Common Pleas, June 29, 1903.]

WRIGHT, ADMR., V. SMYTHE.

1. PLEADINGS CANNOT CONTROL A CODICIL SET OUT IN HAEC VERBA.

Where the codicil of a will is set out in haec verba and the substance of certain paper writings, averments in the petition that are only in the nature of conclusions of the pleader therefrom cannot control the construction of the written instruments.

2. TRUST DEED CONFERRING POWER OF SALE.

A paper writing providing that any temporary loans made for the support of G. S. should be paid out of the first proceeds remaining in the hands of A. S. from any sale which A. S. might make of any of certain lands, theretofore conveyed to A. S. by G. S. by deed of trust, and also that any advancements which A. S. might make to G. S., or for his support, should be first liens from such sales, confers the power of sale upon A. S.

3. PROVISIONS OF WILL MUST CONTROL.

A court will not disregard a plain provision of a will because of supposed advantages which might accrue to the estate from so doing.

Kibler & Kibler, for plaintiff.

DeWitt & Hubbard, for defendant.

BIGGER, J.

The case is submitted upon demurrer to the petition. The plaintiff seeks to enjoin Arthur H. Smythe of this city from selling certain real estate situated in the state of North Carolina at judicial sale. The demurrer is a general one, and after a careful examination of the petition and amended petition and the arguments of counsel, I am of opinion that the demurrer to the petition is well taken. I base my conclusion in the case upon the provisions of the codicil to the will of George B. Smythe. There are some averments contained in the petition and amended petition as to the nature of the trust in Arthur H. Smythe, and the effect of the deed creating it and the subsequent paper writings of June, 1894, and March,