This is an action in partition. William Larkin died possessed of certain real estate in this county, being farm land and about sixty-nine acres in extent. He had made a will and willed, that t'he widow, Catherine, should have the use of the property during her life, and the remainder was to be divided among his seven children. He also made a proviso in this will that the property should not be sold during the life of his widow. One of the sons, desiring to raise money, made a mortgage to the Toledo Loan Company, his mother joining in the mortgage, by which he mortgaged t'o the loan company a one-seventh interest in said premises. The lo’an was not paid and the loan company brought suit [474]*474to foreclose the mortgage, making, of course, the mortgagor and also Mrs. Larkin, the widow, parties to the suit; and sucb proceedings were bad in the case that a decree was taken for the sale of one undivided óne-seventh of the property. the widow in that •case did not answer or set up any defense. After the purchase was made by the loan company, it brought a suit in partition to have a part of it set off to it,"being one undivided one-seventh of the property, in severalty. Now the defense is made by the heirs and by the widow also, or, rather, they set up the claim that a partition can not be bad at the present time. She sets up further that she bad no inteest in the loan, received no portion of it' and that it was a loan by her son; that she had been told that it was necessary for her to sign the mortgage in order to enable her son to borrow the money. There is some color to that claim in the language that is used in the mortgage itself; but in the suit to foreclose the whole matter is set up, and it is claimed by the plaintiff that it is entitled to an undivided one-seventh, and the widow makes no objection to that. If she bad set up in that suit what she sets up in this, the matter could have been litigated there; but she having failed to do anything of the bind, we think that bars her from setting it up in this suit; the case must be disposed of here as upon the fact that the loan company has a right to one-seventh of that property, in fee, and the right- to possess it.
The first question made is, that the widow could not transfer •or release a portion of her life estate; that therefore her son did not take a full fee, and that the loan company standing in his shoes, simply has his interest in the property, subject to the right of possession in the widow during her lifetime. To this contention we are unable to agree. We understand the law to be — and. the matter is recognized, we think, by the courts of this state— that the widow would have the right to dispose of her life estate, .and if so, we see no reason why she can not dispose of a portion •of it by releasing her right to the use of a portion of the estate and retain her remainder of that portion.
The next question that came up was in regard to the clause in the will, that the property should not be sold during the life of the widow. The testator bad willed the use of the property to .the widow during her life. We may take it for granted that that [475]*475conveyed to her a life estate, and that in the enjoyment of that property she would be entitled to possession of the property. It did not create a trust, but she was entitled to possession; and the remainder, subject to that, was given to these heirs. We are clearly of the opinion that that clause of the will — the clause against aliention — is repugnant to the devise made to the children of this property, and is therefore void, and that that clause has no force or effect and can not have in any decision we may mate in this case.
It is true that the Supreme Court of this state has held, in the case of Tabler v. Wiseman et al, 2 O, S., 208, that where there is a vested life estate in property, no one of the remaindermen can have a partition. That proceeds upon the theory that a partition does not create a title, but simply separates the property and gives to each one who is entitled to possession the right to possess a certain part of the property as his own. There is in this case 'cited a very full and earnest discussion of the question by Judge Ranney, wherein it is shown that the right of possession, as well as the right to the land must exist in order to enable the party to maintain possession. There are two cases in this state that have a bearing on this question. This whole ease of Tabler v. Wiseman has a bearing, and should be read in order to fully understand the views of the court upon that question. But there was a case in 11 Ohio, 389 (Morgan v. Staley), which was discussed by Judge Ranney in this Tabler case, at page 216. That was a case where a man died and his property descended to his heirs. The plaintiff in that ease had one-sixth interest in the estate, subject to the widow’s dower, and he was also the owner, by purchase, of the widow’s dower. Now he had the widow’s dower and had -one-sixth of the estate by virtue of his heirship, and the court held that so far as the one-sixth of the land was concerned, he had a title to it in fee simple with a right of possession, and so decreed.
There is a decision found in Vol. 1 Ohio Circuit Court Decisions, 38 (Elrod v. Bass), rendered by Judge Smith. This was a case in which there had been a will made of the property^ under divers and sundry conditions, -and a life estate had been bought in -by one of the persons who owned the reversion or remainder, [476]*476and the question there came up- whether that party might maintain an action in partition, and this is the syllabus:
“One of several remaindermen, if he is also the owner of the life estate, may- maintain partition, but no division -among the other reversioners -ought to be made unless by their consent, nor ought there to be a sale subject to the life estate if division is possible; -but if t'he life tenant agrees to -a sale free of the life estate-, it may' be h-ad if mo-t prejudicial to the -other parties.
“Remaindermen, or reversioners owning no interest in the life estate, can not maintain partition until the estate expires.”
They hold:
“1. That if there be an outstanding life estate on the whole of a particular tract -of land, hel-d by a qierson who is not an owner of any reversionary interest' or estate in remainder in said premises, an action for -the partition thereof can not be maintained by any -owner -of any interest in reversion or remainder therein.” (And then cite the Tabler case).
“2. But if -one -of the remaindermen, or -a reversioner, is also the owner of the life estate- in the whole premises, he may maintain such an action, and if his interest therein can be set off to him without injury to the value of the residue of the estate, it may be done. This -m-fiy be necessary t'o- enable such' owner of the life estate -and an interest in remainder, properly to enjoy and improve his share of the estate. But (unless by consent of the owners of' the remainder), there ought not to be a partition of the residue -among -them, for the reason that, if it should be done, they -could acquire thereby no present right in the possession of their shares so set off, and the value of such shares, on account -of depreciation of the buildings or improvements thereon, or for -other reasons, may greatly change, before the termination of the -outstanding life estate-.
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This is an action in partition. William Larkin died possessed of certain real estate in this county, being farm land and about sixty-nine acres in extent. He had made a will and willed, that t'he widow, Catherine, should have the use of the property during her life, and the remainder was to be divided among his seven children. He also made a proviso in this will that the property should not be sold during the life of his widow. One of the sons, desiring to raise money, made a mortgage to the Toledo Loan Company, his mother joining in the mortgage, by which he mortgaged t'o the loan company a one-seventh interest in said premises. The lo’an was not paid and the loan company brought suit [474]*474to foreclose the mortgage, making, of course, the mortgagor and also Mrs. Larkin, the widow, parties to the suit; and sucb proceedings were bad in the case that a decree was taken for the sale of one undivided óne-seventh of the property. the widow in that •case did not answer or set up any defense. After the purchase was made by the loan company, it brought a suit in partition to have a part of it set off to it,"being one undivided one-seventh of the property, in severalty. Now the defense is made by the heirs and by the widow also, or, rather, they set up the claim that a partition can not be bad at the present time. She sets up further that she bad no inteest in the loan, received no portion of it' and that it was a loan by her son; that she had been told that it was necessary for her to sign the mortgage in order to enable her son to borrow the money. There is some color to that claim in the language that is used in the mortgage itself; but in the suit to foreclose the whole matter is set up, and it is claimed by the plaintiff that it is entitled to an undivided one-seventh, and the widow makes no objection to that. If she bad set up in that suit what she sets up in this, the matter could have been litigated there; but she having failed to do anything of the bind, we think that bars her from setting it up in this suit; the case must be disposed of here as upon the fact that the loan company has a right to one-seventh of that property, in fee, and the right- to possess it.
The first question made is, that the widow could not transfer •or release a portion of her life estate; that therefore her son did not take a full fee, and that the loan company standing in his shoes, simply has his interest in the property, subject to the right of possession in the widow during her lifetime. To this contention we are unable to agree. We understand the law to be — and. the matter is recognized, we think, by the courts of this state— that the widow would have the right to dispose of her life estate, .and if so, we see no reason why she can not dispose of a portion •of it by releasing her right to the use of a portion of the estate and retain her remainder of that portion.
The next question that came up was in regard to the clause in the will, that the property should not be sold during the life of the widow. The testator bad willed the use of the property to .the widow during her life. We may take it for granted that that [475]*475conveyed to her a life estate, and that in the enjoyment of that property she would be entitled to possession of the property. It did not create a trust, but she was entitled to possession; and the remainder, subject to that, was given to these heirs. We are clearly of the opinion that that clause of the will — the clause against aliention — is repugnant to the devise made to the children of this property, and is therefore void, and that that clause has no force or effect and can not have in any decision we may mate in this case.
It is true that the Supreme Court of this state has held, in the case of Tabler v. Wiseman et al, 2 O, S., 208, that where there is a vested life estate in property, no one of the remaindermen can have a partition. That proceeds upon the theory that a partition does not create a title, but simply separates the property and gives to each one who is entitled to possession the right to possess a certain part of the property as his own. There is in this case 'cited a very full and earnest discussion of the question by Judge Ranney, wherein it is shown that the right of possession, as well as the right to the land must exist in order to enable the party to maintain possession. There are two cases in this state that have a bearing on this question. This whole ease of Tabler v. Wiseman has a bearing, and should be read in order to fully understand the views of the court upon that question. But there was a case in 11 Ohio, 389 (Morgan v. Staley), which was discussed by Judge Ranney in this Tabler case, at page 216. That was a case where a man died and his property descended to his heirs. The plaintiff in that ease had one-sixth interest in the estate, subject to the widow’s dower, and he was also the owner, by purchase, of the widow’s dower. Now he had the widow’s dower and had -one-sixth of the estate by virtue of his heirship, and the court held that so far as the one-sixth of the land was concerned, he had a title to it in fee simple with a right of possession, and so decreed.
There is a decision found in Vol. 1 Ohio Circuit Court Decisions, 38 (Elrod v. Bass), rendered by Judge Smith. This was a case in which there had been a will made of the property^ under divers and sundry conditions, -and a life estate had been bought in -by one of the persons who owned the reversion or remainder, [476]*476and the question there came up- whether that party might maintain an action in partition, and this is the syllabus:
“One of several remaindermen, if he is also the owner of the life estate, may- maintain partition, but no division -among the other reversioners -ought to be made unless by their consent, nor ought there to be a sale subject to the life estate if division is possible; -but if t'he life tenant agrees to -a sale free of the life estate-, it may' be h-ad if mo-t prejudicial to the -other parties.
“Remaindermen, or reversioners owning no interest in the life estate, can not maintain partition until the estate expires.”
They hold:
“1. That if there be an outstanding life estate on the whole of a particular tract -of land, hel-d by a qierson who is not an owner of any reversionary interest' or estate in remainder in said premises, an action for -the partition thereof can not be maintained by any -owner -of any interest in reversion or remainder therein.” (And then cite the Tabler case).
“2. But if -one -of the remaindermen, or -a reversioner, is also the owner of the life estate- in the whole premises, he may maintain such an action, and if his interest therein can be set off to him without injury to the value of the residue of the estate, it may be done. This -m-fiy be necessary t'o- enable such' owner of the life estate -and an interest in remainder, properly to enjoy and improve his share of the estate. But (unless by consent of the owners of' the remainder), there ought not to be a partition of the residue -among -them, for the reason that, if it should be done, they -could acquire thereby no present right in the possession of their shares so set off, and the value of such shares, on account -of depreciation of the buildings or improvements thereon, or for -other reasons, may greatly change, before the termination of the -outstanding life estate-. Nor ought there to be a sale of t'he premises; subject to- s-aid life estate, if it can not be so divided without such consent; for in such ease the owner of the life estate manifestly would have a great advantage over the other parties in interest', -or persons proposing to be purchasers thereof. If the owner -of -the life estate agrees to the sale of the premises free of'his life estate therein, and consents to- take the value thereof in m-oney, to be fixed and ascertained by the court, we are of the opinion that such sale may be had, if it appear to the court that it will not be to th-e prejudice of the other parties in interest.” (Citing Tabler v. Wiseman, 2 O. S., 208, and Morgan v. Staley, 11 Ohio, 389).
That case -we think good law, and in the case 'at bar we- think the loan company have a title in fee with the right to immediate [477]*477possession.. of one-seventh-of this land,-under'.this decision which we have cited, and to- have that portion set off. Whether they had a right to- have 'a sale of the premises, if ■ partition could not be made, is a question which, perhaps, is not necessary to- decide here, because the plaintiff only seeks a portion of that life estate and the balance remains in the remaining, portion .of the land, and, as said by Judge Smith in that case, a partition -ought not to be made, because the conditions may.be greatly changed by the time of the death .of -the, widow. But for these reasons we hold that a partition be ordered of .the premises. setting off a one-seventh - interest, and that is.-,a.s,.,far;.as,our order goes at present.
King &, Tracy, for plaintiffi
Frank M. Sala, for defendants.