Harris v. Maholm.

setting aside their grandfather's will (being then minors of tender age) but none of them were parties to such proceeding. The one, James T. Maholm was named as a defendant in the proceeding, ostensibly because of a small legacy left him by such will: but as the service of summons upon him was fatally defective (and as I recall no guardian ad litem was appointed), we may safely conclude that none of these children were parties to such suit. Under these circumstances we are led to inquire, "Is this judgment binding upon these children?" In my judgment, this question must be answered in the negative. Under the will of their grandfather, and by virtue of Sec. 8622 G. C. (Sec. 4200 R. S.) the remainder in fee simple would pass to such of the children of Thomas as should survive him. It is my judgment that these children of Thomas were necessary parties to the will contest proceeding, and not having been parties, they are not in any way affected by the judgment.

Section 12080 G. C. specifies who must be made parties to a petition to contest the validity of a will. It says:

"All the devisees, legatees, and heirs of the testator and other interested persons, including the executor or administrator, must be made parties to the action."

It is claimed on behalf of the defendants, the Blimes and Hunters, that these children of Thomas were not "interested parties" such as is contemplated in this section of the General Code: that inasmuch as they had no vested interest they would not come within the meaning of the statute: that in all proceedings involving an estate tail, the first tenant in tail represents his issue as well as himself, and that therefore the children or issue of Thomas, were represented by Thomas in this proceed. ing.

There are some old authorities, which at first glance would seem in a measure to support such doctrine, but on closer examination we find such doctrine to have been recognized in cases where the interests of the first donee in tail, and that of his issue were identical. In the case at bar, it is very different. The position which Thomas took in the will case, was antagonistic to the interest of his children. His own issue were in fact the only parties he was fighting. Had Thomas tried to uphold

Knox Common Pleas.

his father's will and thereby sustained his own as well as his children's title, there would be some reason in claiming that he represented his children in such suit. He was trying to establish his own title as heir and thereby defeat his children or issue of their rights under the will.

I think the doctrine of representation by the first donee in tail, against the policy of the law of Ohio-As reflecting upon this question, I cite Sec. 11925 G. C. et seq., which provides for the sale of entailed lands. Section 11926 provides as follows:

"All persons in being who are interested in the estate, or by the terms of the will, deed, or other instrument creating the entailment or other estate thereafter, or otherwise, shall be made. parties to the action."

These sections were in force substantially in their present form at the time this will was set aside, and show clearly that the legislature of this state recognized the issue of the tenant in tail as being "interested parties," when it comes to a disposition of an entailed estate, and that in such case, the tenant in tail in no way represents his issue then in being.

Irrespective of any statute however, the idea of one person representing another whose interests are adverse to his, is repugnant to every principle of our jurisprudence.

In the case of Reams v. Wolls, 61 Ohio St. 131 [55 N. E. 176], the court in speaking of the statute giving to guardians the right to consent to a sale, on page 145 use the following language:

"But it does not follow from this that a guardian may assent for his ward in a proceeding commenced by himself and in his own interest and necessarily as in this case, occupies a position adverse to his ward."

Counsel for the defendants, the Blimes and Hunters, rely upon the case of Maholm v. Dryer, (not reported) decided by the circuit court of this district in 1904, and later affirmed by the Supreme Court, no opinion, Maholm v. Dryer, 72 Ohio St. 679, as authority sustaining their contention that these children are bound by the judgment setting aside the will of their grandfather. In this last cited case, the children of William C. Maholm, one of the testator's sons sought to recover lands which

Harris v. Maholm.

had been devised in another item of the will by language somewhat similar to the language used in item 2 above quoted. The said William having sold this land in his lifetime and conveyed the same by Warranty Deed purporting to convey the fee simple title thereof. The result of this case was a judgment against such recovery by the children of William. It is unfortunate that this case is not reported. Neither the decision of the circuit nor of the Supreme Court-so we are left to surmise upon what theory this case was decided. However, the provision of the will then under consideration was quite different from item 2: the item being as follows:

"Item 3. I devise and bequeath to my son William C. Maholm and to the heirs of his body forever, a certain parcel of land (describing it). I design to vest the title of this parcel of land in my son William C. Maholm, with the right in him to devise the same to either or all of his children and their children as he may desire."

It is possible that the court construed this item as giving William a fee simple title.

Again, it is possible that the court held in that case, that the children of William were represented in the will contest by their father. Upon the face of the record of the will contest, this son William did not occupy a position adverse to his children, for he was defendant in such proceeding and might be presumed to be interested in sustaining his father's will. In so far as the record shows, William, without his consent was made a party defendant in such proceeding. His, as well as his children's title under such will was assailed. At least it is not inconsistent with the record to assume that William would be interested in sustaining his father's will, and by so doing, he would protect the rights of his children: while the position of Thomas was in every sense, adverse to his children.

It is next claimed that the plaintiff and her brothers and sister, are barred from claiming in this suit by reason of the judgment in the case of Maholm v. O'Bannon, (not reported). This last mentioned case was a suit brought by the children of Thomas seeking to have the judgment vacating the will of their grandfather set aside, and was dismissed by the court as to all

Knox Common Pleas.

such children excepting as to James, and later the circuit court sustained a demurrer to the petition of James, and dismissed such petition. I find nothing in the record of this case which in my judgment would bar them from making the claim they now make.

If I am correct in holding that the children of Thomas were not bound by the judgment setting aside their grandfather's will in the first instance, the refusal of the court to set such judgment aside, would not give such judgment any more force or validity than it had in the first instance. If the judgment was void as to them, the refusal of the court to set it aside, would not make it valid. The court did not hold the judgment setting aside the will to be a valid judgment; it only dismissed the petition. The sustaining of a demurrer to the petition and the dismissal of the same is not a final adjudication such as to bar the rights of these children. See Moore v. Dunn, 41 Ohio St. 62; Rafferty v. Traction Co. 25 O. C. C. 411 (1 N. S. 538).

As to case of Patton v. Maholm, (not reported) I find the results more disastrous to the claim of plaintiff. This suit was for the foreclosure of a mortgage given by the testator, James Maholm in his lifetime and a sale upon such judgment would convey all the title which the testator had at the time of executing such mortgage; and the defendants, the Blimes and Hunters, take good title from the purchaser at such sale.

However, in so far as the judgment in this same case upon the cross-petition of the Michigan Mutual Life Insurance Company, affects the rights of the children of Thomas, the same is void. These children were never made parties to such crosspetition. The mortgage to this insurance company was given ly Thomas, and could not affect the rights of these children for the reason that Thomas had no interest extending beyond his lifetime. The amount realized from this sale should have been applied as follows:

costs.

First. To the payment of the Patton mortgage and the

Second, To the payment of the insurance company's mortpage to the extent of the interest which Thomas had in this land.

to

Harris v. Maholm.

Third. The balance should have been placed in trust or otherwise preserved for the children of Thomas who should survive him.

The application of such balance by the purchaser, the insurance company, to the payment of its mortgage given by Thomas, was illegal and void, and the court was without jurisdiction to make such order.

Whether this insurance company may yet be held as trustees of such fund I do not pretend to decide as that matter is not raised in the pleadings, and this insurance company is not a party to this suit. However, the fact remains that these children of Thomas have been deprived of valuable rights given them by the will of their grandfather, and this has been done under the guise of legal proceedings, and without these children having had "their day in court." For such illegal confiscation of their property, there ought to be a remedy. Such fact however, will not justify a disturbance of the title of the Blimes and Hunters. They take good title, and whatever rights these children had, has been transferred to the funds arising from the sale of the land in the foreclosure suit of the Patton mortgage.

In view of this finding there remains no reason for considering the plea of the statute of limitations. However, the statute would not commence to run until the death of Thomas, which occurred in 1905, at which time the interest of these children became a vested one, and if they were not otherwise barred from claiming this land, they would not be barred by the lapse of time. An entry may be placed upon the Journal of this court in accordance with this finding, adjudging the title to the lands in question to be in the defendants, Blimes and Hunters, as claimed in their answers respectively, and dismissing plaintiff's petition.