The Ohio Oil Co. v. Hurlbut.

or soon, or something to that effect. No definite time was named, no intimation was given by Peters to Gordon that if he failed or refused to go and develop the premises that he should insist upon a forfeiture, nothing was said to him about that, and no further conversation took place between the parties. Mr. Peters saw fit in January, 1897, to make a lease to another party without saying anything to the oil company. Now he insists in defence to this action for injunction that plaintiffs' lease was forfeited at all these various times by reason of delay. Now, unless we are to hold that the delay from August 3, to January 10 was an unreasonable delay, then Mr. Peters' defense is not a good one to this action in our judgment, and in view of the fact that nothing occurred between these parties except the conversation above related, we are compelled to hold that Mr. Peters has not made any defense to this application for injunction. He has treated the operation of these premises all the time so far as anything he has done is concerned, as if it was satisfactory to him. No complaint has emanated from him except the single request in August, 1896, that more wells should be drilled upon the property. Another ground is insisted upon, and that is that the lease should be forfeited because of their having violated the implied covenants of this contract, which are that they should not only reasonably develop, but should sink off-setting wells. Very little need be said upon that subject, since there was upon the adjoining property either controlled by plaintiff or others, but four wells that required offsetting. There is one other well that is about 400 feet from the premises to the north, and there are four wells about 1,000 feet from the premises to the east, some of them in operation and some have been dry for two or three years. There are four wells then about 200 feet from Peters' lands; three of these are on the piece next adjoining the northeast corner and are, as I say, 200 feet from his line, but the well sunk by the plaintiff in the northwest corner of Peters' farm are likewise two hundred feet from the line both north and west, so that if that well was down where it ought to be, it protects his land from any drainage from any of these three wells, because it is just 400 feet away from two of them and a little more than that from the center one at the northwest corner, but in July, as I have said, with his consent and approval the company put down another well on the west line of the property or 200 feet from it, and that off-sets the only other well there is near the line adjoining Mr. Peters' property, so that all the wells on the adjoining lands that are adjacent to them have been offset by these two wells. Now a great many authorities have been cited in this case to show that there is ground here for declaring this lease forfeited, but none of them in our judgment reach the facts of this case where there has been a distinct, plain line of conduct pursued by both parties with reference to the construction that should be given to this contract-a line of conduct that the court cannot ignore on the part of Mr. Peters and the Ohio Oil Company amounting to a consent to all of this delay, or waiver of the right to ask a forfeiture. It seems like a long delay, that has expired since 1889, but it has been consented to by Peters, and treated as though a proper thing, and he received and accepted $160.00 a year as a full satisfaction for that as long as it was paid, so that no ground exists upon the facts for application of any of the law that has been there cited. Many of the cases cited from Pennsylvania that have been read to us have no application to an action like this, most of which are actions for damages, ejectment, or for the specific perform

Lucas Circuit Court.

ance of contracts in which different rules of law are applicable. I shall not have time to refer to these authorities, but will content myself by saying that we hold upon the facts in the case that the plaintiffs are entitled to the injunction as prayed for.

WILLS

[Lucas Circuit Court, March 16, 1895.]

Scribner, Haynes and King, JJ.

EDGAR HUIDEKOPER V. LOUISA H. Perry et al.

CONSTRUING A WILL CONTAINING A Devise for BENEVOLENT PURPOSES. Where a testator has sought to make a specific disposition of property, or a disposition of property by terms, and that disposition has failed, such will is not to be construed so as to hold that such bequest or devise fails to become operative by reason of being in violation of statutory regulations-nevertheless it may come within a clause making a disposition of property not specifically disposed of.

ERROR to the Court of Common Pleas of Lucas county.

SCRIBNER, J.

In briefly stating the facts of this case I shall avail myself largely of the facts as set forth in the brief of counsel for plaintiff in error.

The action in the court below involved the construction of the will of Frederick Huidekoper, late a resident of Pennsylvania. The plaintiff below, defendant in error here, the daughter of the testator, filed her petition to quiet title to certain property located in Toledo, under section 5779, Revised Statutes, alleging possession through her tenants. One of the defendants below, Edgar Huidekoper, plaintiff in error here, executor under the will of the testator, filed his answer.

To his answer plaintiff filed a reply, admitting all the facts alleged in the answer, but claiming that the devise in the will of the Toledo property for benevolent purposes was void for two reasons: First, for uncertainty; and second, because the testator did not survive one year the making of his will, as required by section 5915, Revised Statutes of Ohio.

To the reply the defendant demurred. The court below overruled the demurrer, and granted the defendant leave to file an amended answer, to which the plaintiff demurred; and the court sustained the demurrer, and rendered judgment for the plaintiff.

From the amended answer it appears that the testator died on the 16th of May, 1892, having been a resident of Crawford county, state of Pennsylvania, where his will, executed October 29, 1891, was admitted to probate, and letters testamentary issued to his daughter and to the defendant; that the widow of the testator is still living, but that his daughter, Anna Huidekoper, died in September, 1893, leaving the answering defendant sole surviving executor of the will. The answer also sets out the will at length. It further sets out three acts of the legislature of Pennsylvania, the first of which corresponds to section 5915, Revised Statutes of Ohio, except that instead of requiring a testator to survive the making of his will one year, it requires but one calendar month in order to render charitable bequests valid.

Huidekoper v. Perry et al.

Section 5915, Revised Statutes of Ohio, the true effect and construction of which is involved in the consideration of this controversy, is as follows:

"If any testator die, leaving issue of his body, or an adopted child, living, or the legal representatives of either and the will of such testator give, devise, or bequeath the estate of such testator, or any part thereof, to any benevolent, religious, educational, or charitable purpose, or to this state or to any other state or country, or to any county, city, village, or other corporation or association in this or any other state or country, or to any person in trust for any of such purposes, or municipalities, porations, or associations, whether such trust appears on the face of the instrument making such gift, devise, or bequest, or not; such will as to such gift, devise, or bequest, shall be invalid unless such will shall have been executed according to law, at least one year prior to the decease of such testator."

cor

It will be observed that according to the facts shown in this case in the record, the testator executed his will on the 29th day of October, 1891. He died on the 16th of May, 1892, which, of course, was within the period of one year from the date of the execution of the will. The provisions of the will, so far as they appear to be material here, are as follows:

"1. After the death of my wife I wish that my property with the exceptions hereinafter mentioned shall be equally divided between my children. * * *

2. Further, should I not while living dispose of my Toledo property, I wish that my executors shall dispose of it, investing the net proceeds thereof, the same to be placed in the hands of Anna Huidekoper, trustee, and be devoted to benevolent purposes. To her I will give full directions concerning it.

"3. Any property not specifically disposed of in the foregoing will shall, if not already invested, be put into a productive shape, and after the wants of the estate have been abundantly provided for, any surplus income shall be divided into three equal parts and given to my wife and each of my daughters.

"4. I appoint as exccutors of this my last will and testament, my nephew, Edgar Huidekoper, and my daughter, Anna J. Huidekoper, and hereby authorize them, or the survivor of them, and in case either of them shall be unable to perform the duties of executor, then the remaining party to exercise all powers needed in the execution of this trust, not only the power of settling and conveying property, but also to compromise claims and make adjustments, in the collection of securities when they or the acting party may deem the same advisable and for the benefit of those interested in the proceeds.

"5. I authorize my executors, or the survivor of them, to sell or convey as opportunity offers, my real estate in the city of Toledo, Ohio, or any that I may acquire in any other state."

The provisions of the statutes of Pennsylvania bearing upon the questions here in controversy are given in substance in the brief, but are copied literally into the answer filed in the case by the surviving executor. They are as follows:

"Defendant further says that on the 26th day of April, A. D. 1855, the legislature of the state of Pennsylvania passed a law of which the following is a copy:

Lucas Circuit Court.

"No estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person, in trust for religious or charitable uses, except the same be done by deed or will, attested by two creditable, and at the same time, disinterested witnesses, at least one calendar month before the decease of the testator or alienor; and all dispositions of property contrary hereto, shall be void, and go to the residuary legatee or devisee, next of kin, or heirs, according to law; provided that any disposition of property within said period, bona fide made for a valuable consideration, shall not be hereby avoided."

That on the 4th day of June, 1879, the legislature of the state of Pennsylvania passed a law of which the following is a copy:

"Every will shall be construed with reference to the real estate and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. Unless a contrary intention shall appear by the will, such real estate or interest therein as shall be comprised or intended to be comprised in any devise in such will contained, which shall fail or be void by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise if any, contained in such will."

That on the 9th day of May, A. D. 1889, the legislature of Pennsylvania passed a law of which the following is a copy:

"No disposition of property heretofore or hereafter made for any. religious or other charitable uses shall fail for want of a trustee or by reason of the objects ceasing or depending upon the discretion of a last trustee, or being given in perpetuity, or in excess of the annual value limited by law; but it shall be the duty of any court having equity jurisdiction in the proper county, to supply a trustee, and by its decrees to carry into effect the intention of the donor or testator, so far as the same can be ascertained and carried into effect consistently with law or equity."

And upon this state of facts as the terms of the will, a copy of which is set out in the answer, it is claimed on the part of the plaintiff in error, the executor of the last will and testament of the decedent, that the defendant should have judgment of the court upon the question as to the true construction of this will in so far as the Toledo property is concerned, and he prays that the claims made by the plaintiff in the proceeding may by the decree of the court be declared invalid and of no effect," and that plaintiff be perpetually enjoined from making any claim to said real estate; and that all such claims be quieted, and that this defendant be vested with power of sale of and entitled to the possession of said real estate."

One of the principal grounds of contention in this case is this: it is claimed on the part of the plaintiff in error, the executor of the last will and testament, that by the terms of this will the doctrine of equitable conversion is applied, so that by force of that doctrine the property disposed of by the will is not to be regarded as real estate, governed and controlled by the laws of Ohio, but is to be treated and regarded as personalty, which of course follows the domicil of the testator, and is to be treated, regarded and disposed of according to the laws of the state of Pennsylvania, where the testator resided, and where his last will and testament was made and admitted to probate.

The doctrine of equitable conversion and its application in cases of testamentary disposition of property is stated very distinctly in the case of Collier v. Grimesey et al., 36 O. S., 17, and the court there enunciates

Huidekoper v. Perry et al.

the great, well-established, well-understood doctrines of courts of equity applicable in such cases. The provision of the will coming under review by the court was in these words:

"I direct that when my son, Samuel Painter, shall arrive at the age of twenty-one years, that the above mentioned real estate shall be sold (provided that my wife's widowhood shall have ceased before that time), and to be devised between them as follows: Seth, Samuel and Oris, two shares each, and the rest of my children one share each."

The court say of this disposition of the property that the direction to sell the land is imperative- and perhaps I ought to state that the form of this language should be carefully regarded and considered in giving a proper construction and effect to the ruling of the court. The court says that this language which I have just read from the will itself is imperative. There is no discretion vested in them whether the land shall be sold or not. The direction is that the real estate shall be sold and the proceeds of the real estate divided among the persons designated. In the syllabus the court declare, in the third paragraph, "That under the direction to sell, the land is to be regarded, for the purposes of distribution, as converted into money; and that the children and grandchildren took, at the death of the testator a vested interest in the proceeds of the sale."

The all-important question in this case is whether or not the doctrines of the court of equity as declared in the case to which I have just referred shall apply to a case like the present, where, by the provisions of the wili the executor is authorized to sell and to pay the proceeds of the sale to a trustee who may dispose or it for benevolent purposes according to directions which are to be furnished to her by the testator. Now it would be well to recur for a moment to the two provisions of the will upon which this question depends:

"Further, should I not while living dispose of my Toledo property, I wish that my executors shall dispose of it, investing the net proceeds thereof, the same to be placed in the hands of Anna J. Huidekoper, trustee, and be devoted to benevolent purposes. To her I will give full directions concerning it."

And this paragraph should be read in connection with the former: "I authorize my executors, or the survivor of them to sell or convey as opportunity offers my real estate in the city of Toledo, Ohio, or any I may acquire in any other state."

First, he declares that should he not while living dispose of his Toledo property, that his executors shall dispose of it, "investing the net proceeds thereof, the same to be placed in the hands of Anna J. Huidekoper, trustee, and to be devoted to benevolent purposes. To her I will give full directions concerning it." Then he further says, as I have read, "I authorize my executors, or the survivor of them, to sell or convey as opportunity offers, my real estate in the city of Toledo, Ohio, or any I may acquire in any other state." Now we fail to see that by these provisions of the will there is an imperative provision made for the sale of this property. The testator in the first place expressed a wish, in the event that he has not disposed of the property during his lifetime, that his executors shall dispose of it then and invest the proceeds, and place them in the hands of the trustee named to be devoted to benevolent purposes. That is supplemented with a direction or a provision declaring that he confers authority upon the executors to sell or convey as