Carnes v. McAfee

11 Ohio N.P. (n.s.) 517

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: March 14, 1911
• Status: Published

Opinions

Swing, J.

After hearing the evidence and oral arguments in this case, I read the briefs of counsel with care and have reflected upon the ease, and I had intended to write fully the views I have taken of the issues involved, but for want of time have determined to merely state my conclusions.

First. I shall state my construction of the will of Frederick Agerter, deceased.

The important provision .in the will is as follows:

“I give, devise and bequeath all my property, both real and personal of which I may die possessed, to my beloved wife Martha Jane Agerter, during her natural life, and at her death to be distributed in accordance with the laws of the state.”

I think that by the terms of the will quoted, Martha Jane Agerter took an estate in all the property real and personal, of; which Frederick Agerter died possessed, for her natural life, the remainder at her death to be divided according to the statute of descent and distribution of this state, among such persons as should theii sustain to the said Frederick Agerter the relation of heirs at law. I think the remainder was contingent, vesting at the time of the distribution at the death of the -widow. I think this conclusion is according to the decision of our Supreme Court in the case of Barr v. Denney, 79 O. S., 358. It is said in the syllabus:

“In such case the direction to the executor to pay or to distribute to the testator’s legal heirs” confers a contingent interest which does not vest until the period of distribution; and the direction ‘ ‘ to distribute equally to my legal heirs ’ ’ is equivalent to a direction to make distribution in accordance with the statutes providing for descent and distribution.”

The wills in that ease and in this, I think, are substantially alike.

Second. I am of opinion that the affidavit filed by Mrs. Agerter as executrix of her husband’s estate, with the Probate Court of Allen County in 1885' in lieu of a final account, in which she stated that the debts had all been paid and that she was “the widow and sole legatee,” which was advertised and afterwards confirmed in the manner of final accounts by the probate 'court, did not affect the distribution to be made, and that the judgment of the probate court in confirming the account did not amount to a construction of the will binding upon the contingent remaindermen. I do not think the notice of the filing of the affidavit, published as a notice of a final account, was notice to anybody of a proceeding for a construction of the will or determination of the rights of the devisees under the will, and I do not think the judgment of the court in confirming the account was intended to have or could have the effect of determining who were the dis-' tributees under the will or under the law. I do not think it was in the power of the probate court in that proceeding and manner to determine such things.

Third. I think the plaintiffs in their dealings with Mrs. Agerter in relation to the stock left by Frederick Agerter, deceased, in the Lima Machine Works and the stock issued in lieu thereof to Mrs. Agerter in the Lima Locomotive & Machine Company, knew or should have known of her title and of the right of the remaindermen under the will of Frederick Agerter, deceased. They dealt with her usually, though not uniformly, as executrix. But at any rate, I think their dealings with her as to the stock could bind her and her interest only.

I do not think that it was in the power of Mrs. Agerter to bind the contingent remaindermen, or the remaindermen even if they should be held not contingent, by the contract involved in this case, entered into by her with the plaintiffs, by which plaintiffs were to have the option upon her death to take the stock held by her at .par.

Fourth. There is no evidence of any fraud or undue influence practiced by the plaintiffs or any of them upon Mrs. Agerter to induce her to enter into the contract involved in this case. The transaction was perfectly fair on the part of the plaintiffs toward her, and all that was done in making the contract and in pursuance of it, turned out to be greatly to the advantage of Mrs. Agerter and of the'remaindermen.- If Mrs. Agerter had been the owner of the whole title to the stock, I would see no equitable reason to interfere with the carrying out of the contract made by her. Mrs. Agerter and her children in her lifetime received so much in the way of profits and benefits from the arrangement that was made, and the remaindermen now are so benefited by all that was done, that I would be very glad, if I could see my way to do it according to law, to hold tW contract binding upon the remaindermen, and to decree to the plaintiffs the right to take the stock at par and interest according to their agreement, entered into with Mrs. Agerter.

Fifth. It is claimed that the remaindermen are estopped now because of benefits received by them through Mrs. Agerter and because of the lapse of time, and under all the circumstances of the case, to question the rights of the plaintiffs under the contract. But if the remaindermen were contingent, as I think they were, I can see no ground upon which they can be said to be es-topped; nor even if they were not contingent, do I think there is sufficient ground to decree them to be estopped. Even if they had had full knowledge of all that was done and of their rights, I do not think they were bound to interfere with what was being done before the death of Mrs. Agerter, and especially if the remaindermen were contingent so that it could not be known who they would be until the death of Mrs. Agerter. It would seem very clear that there could be no estoppel.

Sixth. I am of opinion that Carey E. McAfee as administrator de bonis non with the will annexed of said Frederick Agerter, deceased, is entitled to the possession of the stock involved in this case for purposes of distribution. I think this is in-accordance with the decision in the ease of Barr v. Denney, supra, in which case the administrator de bonis non with the will of James Barr annexed, began the proceeding to determine the true contraction of the will in order that it might be known how he should distribute the estate. I think the title to the stock in question was in him and could-only be transferred to others through him.

I have thought much about this case and have endeavored to find some ground upon which the contract involved might be enforced -against the remaindermen, for the reason that it was fairly entered into, I think, and turned out to be so profitable an arrangement for all interested in the estate of Frederick Agerter, deceased. It must be said, however, that if it had not been profitable, but had been disastrous, the remaindermen who now profit by it would have lost by it; but the fundamental principle that governs the case, I think, is that it was not in the power of Mrs. Agerter and the other parties to the contract that was entered into to bind the remaindermen as to the estate of Frederick Agerter, deceased. ■

This decision does not apply to twenty-two shares of stock purchased by Mrs. Agerter with her own money. Those shares, part of her five hundred shares, plaintiffs are entitled to take at par under the agreement. As to seventy-eight other shares, which with said' twenty-two made up the last one hundred shares issued to Mrs. Agerter, if it could be shown to me from the evi-' deuce that they were paid for with dividends to Mrs. Agerter, I would hold them also subject to the right of plaintiffs to take them under the agreement. But my understanding is that they were not so paid for, but were just issued to her as what counsel for .plaintiffs says ‘ ‘ may be called bonus stock. ’ ’ If any further light can be given me as to the seventy-eight shares, I shall. be glad to consider further.

Otherwise, a decree may be entered in accordance with the conclusions I have-stated.