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Statement of the Case.

"Signed and acknowledged by said Robert Masters, as his last will and testament in our presence and signed by us in his presence.

A. M. SHRADER,
“ELOID SHRADER,
A. J. SHRADER.

The testator, Robert Masters, died July 13, 1902, leaving surviving him Mary Masters his widow, and Daniel Masters, Frances Spencer and Anna B. Thomas, his next of kin and only heirs at law. On July 30, 1902, the will of said Robert Masters was duly admitted to probate by the probate court of Hocking county and Mary Masters, his widow, was appointed executrix thereof. Prior to his death, but after the making and execution of his will, Robert Masters sold and conveyed lot number twelve, which by item first of said will he had devised to his wife, Mary Masters, for and during her natural life. Thereafter the testator Robert Masters acquired by purchase, and at the time of his death owned and was seized of, the following described parceis oi reai estate: Being ten feet off of the north side of lot number fifteen of Watkins' addition to the village of Murray City, Hocking county, Ohio. Also that strip of land lying between the west boundary of said ten feet off of said lot number fifteen and the stream known as Snowfork, and extending from said west boundary of said ten feet to the stream, said strip being in Hocking county, Ohio. Also twenty feet off of the south side of lot number sixteen of Watkins' addition to the village of Murray City, Hocking county, Ohio. Also that strip of land lying

Statement of the Case.

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between the west boundary of said twenty feet off of the south side of said lot number sixteen and the stream known as Snowfork and extending from said west boundary of said twenty feet to the said stream, said strip being in Hocking county, Ohio. Mary Masters having formally elected to take under the will of her deceased husband, claimed, as devisee, a life estate in the premises last above described, and in her lifetime collected and appropriated to her own use rents and profits arising therefrom to the amount of $651.00. Mary Masters died February 7, 1905, and subsequently plaintiff in error, O. W. H. Wright, was duly appointed administrator of her estate. On July 14, 1906, the defendants in error herein brought suit in the court of common pleas of Hocking county against said O. W. H. Wright as administrator of said Mary Masters, to recover said sum of six hundred and fifty-one dollars so received and collected by her as rental from said after-acquired property. In said action Frances Spencer refusing to join as plaintiff was made a defendant. By way of answer to the petition of plaintiffs in said action the administrator pleaded three several defenses: First, that Robert Masters did not die intestate as to the property described in plaintiffs' petition, but that under and by the provisions of his will said property passed to, and became the property of, Mary Masters for and during her natural life. The second defense was a plea of estoppel. The third defense went out on demurrer and is not here involved. Plaintiffs replying to the second defense denied specifically the several matters relied upon as creating an estoppel

Argument for Plaintiff in Error.

so far as the same were pertinent and well pleaded. The trial in the court of common pleas resulted in a verdict and judgment in favor of the defendant O. W. H. Wright, administrator. This judgment was reversed by the circuit court, and we are now asked to reverse this judgment of the circuit court and to affirm the judgment of the court of common pleas.

Mr. 0. W. H. Wright, for plaintiff in error.

Our contention in this case is, that Robert Masters did not die intestate as to the real estate described in the petition. This is apparent from the whole will; and is so as a matter of law, in view of the will and the facts admitted to be true by the pleadings below.

Robert Masters intended that his wife should have all his property at his death.

The common law rule as to after-acquired property does not obtain in Ohio. Section 5969, Revised Statutes; Ridenour v. Callahan, 8 C. C., N. S., 585.

It is, or may be claime 1, that it does not “clearly and manifestly appear” from Masters' will that he intended to devise after-acquired property.

A to the rules of construction in wills see Carrel V. Carrel, 24 C. C., 416; Brimmer v. Sohier, Exr., 55 Mass., 118; Winchester v. Forster, 57 Mass., 366; James, Exr., v. Pruden, 14 Ohio St., 251; Lessce of Smith v. Jones, 4 Ohio, 116; Farrar, Admr., v. Fallestine, 4 C. C., 235; Cushing et al. v. Aylzuin, 12 Met., 169.

Section 5964, Revised Statutes, makes it “the duty of the court to explain the provisions of the will, the rights under it, and by law in the event

Argument for Defendants in Error.

of a refusal to take under the will.” Rockel's Probate Practice, Section 1223.

Then, if there is still doubt, either party concerned can file a petition in court for construction of will under Section 6202, Revised Statutes.

All the parties accepted the situation. If it was a mistake, Mrs. Masters could have filed a petition to set aside her election. But she died before anyone claimed, or discovered any mistake; and it would be injustice now to disturb the relations and situation of the parties as they mutually placed themselves. Mrs. Masters was estopped by her action, in the absence of fraud or mistake, after she elected. Page on Wills, Section 814.

The doctrine of estoppel is set forth in: 5 Michie Ohio Digest, 721; Castalia Trout Club Co. V. Sporting Co., 8 C. C., 194; Buckingham v. Smith, 10 Ohio, 288; Tone v. Columbus, 39 Ohio St., 281; Seeds v. Simpson, 16 Ohio St., 321.

The old, harsh definitions of estoppel, such as Lord Coke gave, and their applications, have been greatly mollified by modern decisions. The new doctrine is called "equitable estoppel," a more potential name than the former common law "estoppel in pais.” Pomeroy's Equity Jur. (3 ed.), Section 802. The best definition of "equitable estoppel” is from Stephen's Digest, page 124.

Mr. S. Weldy and Mr. H. E. Sparnon, for defendants in error.

There is no language used in any part of the will whereby it could or would embrace afteracquired real estate. After-acquired property will only pass to the devisee when the will purports to embrace all the property of the testator.

Argument for Defendants in Error.

Before the act of the first Victoria, enacted in 1837, there was no such thing as after-acquired property passing under a will in England without a re-publication of the same. The same rule pertains in every state of the United States except where the rule has been changed by legislative act. The exact time when the rule was changed in Ohio by the enactment of Section 5969, Revised Statutes, we are unable to say, but we are able to say that it was passed after the year 1836, which is manifest from the case of Lessee of Reynolds v. Shirley, 7 Ohio (part 2), 39.

The distinction of the construction of devises of after-acquired property since the enactment of Section 5969 is that after-acquired property may now pass without a re-publication of the will, if such is the clear intention of the testator from the language used in the will. Applegate v. Smith, 31 Mo., 169; 1 Jarman on Wills (5 Am. ed.), 606.

At common law rule, property acquired after making a will did not pass under a general disposition “of all my real estate.” Havens v. Havens, 1 Sand. Ch., 324.

The language used by Masters, the testator, in his will, is not ambiguous or equivocal. The property devised is specific. The general clause in his will conferring on the devisee, the wife, the power of sale of any or all of his real estate, is also for a specific purpose, to pay debts if necessary.

This conferred to the devisee a naked power of sale, nothing more.

We have yet to learn that a naked power of sale confers title. Bane et al. v. Wick et al., 19 Ohio, 328.

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