Opinion
No. 12345.
1946-05-14
KRIEGER et al. v. STAUFFER er al.
James W. Williamson, of Wauseon, for plaintiffs. C. G. Koester, of Delta, for William Mohr et al.
Suit for partition and for construction of will and for other relief by Archie L. Krieger and others against Margaret Stauffer and others.
Decision in accordance with opinion.James W. Williamson, of Wauseon, for plaintiffs. C. G. Koester, of Delta, for William Mohr et al.
H. Clifton Graybill, of Canton, for the heirs of Mary Keller.
HAM, Judge.
Daniel Mohr died in September, 1915, seized in fee of the lands described in the petition. The two parcels constitute a single tract of one farm. To sell separately would probably entail a loss in the sale value of both parcels.
He left a last will and testament which, on September 17, 1915, was duly admitted to probate and record in this county.
He left a widow and seven children. The widow died January 16, 1946. One of the children, Mary Keller, died January 26, 1946, leaving her husband, Clarence Keller, and ten children (defendants herein), her children all her surviving.
Catherine Krieger, one of said seven children, predeceased her mother; leaving no spouse her surviving, but leaving two children, the plaintiffs; they being also the only two heirs of her body.
The $300 legacy has not been paid. No reason is given why the legatees have failed to pursue their several rights to collect it.
Item Three of his will reads as follows:
‘Third. At the death of my said wife, I give and bequeath to my children, William Mohr, Andrew Mohr, Catherine Krieger, Matilda Dinks, Fannie E. Cook and Hattie Mohr, and the heirs of their body, the sum of three hundred dollars, share and share alike. The residue of my estate to be divided between my children Mary Keller, William Mohr, Andrew Mohr, Catherine Krieger, Matilda Dinks, Fannie E. Cook and Hattie Mohr, and the heirs of their body, share and share alike. Should any of my above named children die without issue, the property devised and bequeathed to them, I desire shall be divided equally between the remaining children.’
The petition prays for partition, sale of the lands as entailed, division of the proceeds, construction of the will and for general equitable relief.
The five living children of the testator as well as their several living children, also the children of the testator's other deceased daughter, Mary Keller, are all made parties defendant herein.
As we view it, this case presents these questions for determination:
First: What estate was devised to the designated seven children, in this will?
Second: What effect, if any, has the words ‘share and share alike’ following the names of these seven designated children?
Third: When did the estate devised to these seven children vest?
Fourth: If either of these five children now living dies without issue him or her surviving, what becomes of the estate in tail devised to him or her?
Fifth: What are the several respective interests in the land of the parties herein today?
Sixth: What right have the five living children and Mary Keller's ten children, respectively, in this $300 legacy, and how may that right be enforced?
Seventh: What is the remedy?
Addressing ourselves to the several questions in the order enumerated above, let us consider: First: What estate was devised to the seven designated children in Item Three (3) of this will?
We fully appreciate that the words ‘heirs of body’ and ‘issue’ have been construed in different ways; as many, it would seem, as the elasticity of the English language would permit.
However, in ordinary, legal parlance, they are synonymous; and the court knows of no rule of construction that would invite any discord or confusion by ascribing any other different meanings to either, as they are used in the will. Harkness v. Corning, 24 Ohio St. 416; Vol. 22, Words and Phrases, Perm.Ed., ‘Issue’; Thompson, Const. of Wills, Sec. 181, p. 315; Schouler on Wills, 5th Ed., Sec. 554, p. 711.
Whether the words ‘share and share alike’ change this universal rule will be a subject for later discussion herein.
We think we must accept, as the correct interpretation of this item, that the seven children named take an estate in fee tail. Dungan v. Kline, 81 Ohio St. 371, 90 N.E. 938;Harkness v. Corning, 24 Ohio St. 416;Pollock v. Speidel, 17 Ohio St. 439, 440;Pollock v. Speidel, 27 Ohio St. 86.
Before proceeding further, we would observe that we must at all times bear in mind, then, that the first donee in tail did not take a life estate. Of that, more anon.
Digressing further for a moment: The error of the court in Pollock v. Speidel, 17 Ohio St. 440, in ascribing to the tenant in tail a life estate, is explained in Harkness v. Corning, supra, 24 Ohio St., at page 428, and also by the court in Dungan v. Kline, supra, 81 Ohio St., at pages 382, 383, 90 N.E. at page 940.
In the following cases the court held that a fee tail was created:
In Dungan v. Kline, supra, the words used were: ‘Elizabeth Wilson and the heirs of her body.’
In Ridings v. Chaney, 81 Ohio St. 556, 91 N.E. 1137 (memorandum), we find from a reference thereto in Williams v. Haller, 13 Ohio N.P., N.S., 329, at page 341, that the devise was ‘to the said Hester and the heirs of her body.’
In that same opinion we find reference to the case of Carter v. Grossnickle, No. 326 Circuit Court of Clermont County, apparently unreported, but was reported below,11 Ohio N.P., N.S., 465, and we find the devise was ‘to my mother, Hannah Carter, and the heirs of her body.’
In the case of Harkness v. Corning, 24 Ohio St. 416, the devise was ‘to my granddaughter, Sarah Harkness, daughter of Charles Harkness, and her issue.’
Incidentally, the court held the word ‘issue’ was equivalent to ‘[heir] of her body.’
In Pollock v. Speidel, 17 Ohio St. 439 (Id., 27 Ohio St. 86) the words used were ‘to the said James Pollock, the heirs of his body * * * forever.’ Second: What effect, if any, has the use of the words ‘share and share alike’ following the names of the seven children, on the devise in this item?
Speaking of the word ‘heirs,’ and of it being construed as ‘children,’ the author at page 214, 69 C.J., says: ‘but such meaning cannot be assigned to the word unless it clearly appears that it was employed by the testator in that sense.’
Citing numerous cases, including McCrea v. McCrea, 22 Ohio Cir.Ct.R., N.S., 433; Lisle v. Miller, 21 Ohio Cir.Ct.R., N.S., 317.
See also: Thompson's Const. Wills, Sec. 166.
What is the office of the comma between ‘heirs of their body’ and ‘share and share alike.’
We've fortified our own first impression of that office by consulting one of high standing as a grammarian. It is intended to break the continuity between those above four first quoted words and the last four quoted words.
In short, the proper grammatical construction requires one to use the last four quoted as qualifying, modifying or restricting the meaning of the preceding portion of the item, thereby designating the interest the children took. It was not the heirs of their body who were to share and share alike, but the seven children.
Punctuation may be disregarded to carry out the obvious intention of a testator, but not simply to arbitrarily change the meaning which the office of the punctuation requires.
‘Punctuation must be disregarded if it prevents ascribing to the words employed their ordinary meaning.’ Thompson Const. Wills, Sec. 87.
Should it be disregarded so as to ascribe to words a meaning contrary to their ordinary, legal meaning? We think not.
‘In the construction of a will the ordinary rules of grammar are to be adhered to, unless a different construction is necessary to effectuate the intention of the testator.’ Twiss v. Simpson, 183 Mass. 212, 66 N.E. 795, 796, 2nd Syl.
‘The safe practical rule for the construction of wills, is, that the grammatical and ordinary sense of the words is to be adhered to unless it would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument.’ Barrus v. Kirkland, 8 Gray, Mass., 512 (Opinion by Mr. Justice Bigelow).
Here, we must change both the office of the period and the ordinary meaning of the words ‘heirs of the body’ to force a construction that those words mean ‘children.’
And that, despite the fact that the testator had used the word ‘children’ in several other portions of the will, apparently understandingly. See cases cited at No. 279 ‘Wills' 12 Ohio Digest.
True, as the digest author digests the opinion in Kellough v. Moses, 35 O.C.D. 685, ‘In construing a will, punctuation is not conclusive,’ but nevertheless, it can't be arbitrarily ignored.
We find nothing in the context to even suggest that the punctuation was a mistake, so as to justify its being ignored. See Noble v. Ayers, 61 Ohio St. 491, 56 N.E. 199.
If this item third, then, is to be given its ordinary interpretation, ascribing to the comma its ordinary function and to the words ‘heirs of their body’ their ordinary meaning, we have it construed as though reading: ‘I give and bequeath to my seven children (naming them) share and share alike, and the heirs of their body.’
Compare the language of this will with the language used in the case reported at page 416, of 24 Ohio St., Harkness v. Corning.
‘A testator devised certain real estate to his granddaughter S. and her issue-habendum, to S. ‘and her issue and their heirs.’'
The court said that ‘issue’ was synonymous with ‘heirs of body’ and that S. took an estate tail.
We cannot repunctuate and change the meaning of the words ‘heirs of the body’ arbitrarily with nothing in the context to justify our action, and say those words meant ‘heirs' or ‘children’ (the testator's grandchildren) and that the testator's children took a fee. If these words mean ‘children,’ of course the grandchildren also take with their parents.
In the case of Moore v. Lewis, 2 O.C.D. 548, both sides conceded that the words ‘heirs of her body’ meant children. The disputed question was, did the testator intend the class ‘children’ should be ascertained at the testator's death or the death of the widow? The court held the time of distribution was at the testator's death, and there being no children (she being the only one of the class designated), the widow took the fee.
Involved, to say the least, but no controverted question as to the meaning of the words ‘heirs of her body’ was presented or discussed.
Obviously little aid is furnished by that case in construing the will in the case at bar.
Another case where the words ‘heirs of the body’ were construed to mean ‘children’ was Poor v. Hart, 11 Ohio N.P., N.S., 49.
The court lays great stress on the words ‘share and share alike,’ citing and quoting from Underhill on Wills, Vol. 2, Sec. 651.
The court, Swing, J., however, observes (speaking of the text quoted by it) ‘the author in a note cites a large number of American cases giving effect to the provision for an equal division upon the term ‘heirs of the body,’ and a number the other way, and the text-books differ.'
Then the court stresses the fact that a division share and share alike was intended; and that that could not be done if the words ‘heirs of the body’ were to be given their ordinary meaning. There, of course, the court was looking to the context to support it's interpretation. The court properly observed in referring to Moore v. Lewis, supra, that ‘it is said that counsel conceded the meaning in that case to be ‘children;’ but it is held that in view of the authorities they should be held to mean children; that the words ‘share and share alike,’ show them to mean children.'
True, the text books do differ, and the modern text books do not say that the words ‘share and share alike’ have any such effect.
Schoulder on Wills, Vol. 1, p. 598, para. 477:
‘Nor will language be distorted or meddled with, whose meaning is clear, for the sake of correcting that which extrinsic proof might show to have been a mistake of fact on the testator's part; now words supplied which it is not evidence that the testator intended to use. To charge or supply words for the sake of creating an intent or of making the will different from what the testator by the will's own language meant it to be is certainly inadmissible; but the moulding or altering must be in furtherance of the purpose expressed or indicated in the context.’
Para. 554, Vol. 1, Schouler p. 711:
‘The word ‘issue’ is of itself less precise and technical than ‘heirs of the body,’ though collective in sense and serving to point out as objects of the devise all the generations of descendants. The present disposition of the English courts appears, however, notwithstanding former doubts, in favor of making ‘issue’ as synonymous, so far as possible, with ‘heirs of the body’. Hence the rule that in devises of real estate, ‘issue’ shall prima facie be construed as a word of limitation and equivalent to ‘heirs of the body.”
Thompson, Construction of Wills, Sec. 167, p. 294;
‘The words ‘bodily heirs' mean heirs of the body, or children only, but the words ‘to each an equal share,’ standing alone, are not sufficient to show an intention on the part of the testator to use the words ‘heirs of the body’ in the sense of children.'
We can see no logical reason for construing words ‘heirs of the body’ to mean children. Certainly the words themselves standing alone do not justify such a construction, and there is nothing in the context to support that construction.
Let us reflect for a moment and picture the result that must exist if the words ‘heirs of the body’ are to be construed as ‘children’.
Roughly, there are approximately twenty-four children and grandchildren of the testator.
If that interpretation was to prevail, this would be the result
(a) We would have failed to recognize the testator's intention of equality which apparently dominates the whole will.
(b) We have arbitrarily ignored the punctuation in that clause of the will.
(c) We have failed to give the words ‘heirs of the body’ their ordinary, legal meaning without anything in the context justifying our action.
(b) One child, Mary Keller, and her ten children get eleven of the twenty-four shares, Catherine Krieger and her two children, three, and William Mohr, but one.
In its last analysis, the one child, Mary Keller, and her ten children would take nearly half of the estate, while the other six children and their children would take the other half.
(e) If the interest did not vest until the death of the life tenant, then we would have the testator devising a one-twenty-fourth interest to each child and grandchild, and, by a sentence immediately following, providing for a gift over as to the children and not as to the grandchildren. A resultant possible lapse of nearly the whole devise.
If, as we think is true, the interest vested at the testator's death, there could not be a gift over as to a child who died thereafter. Hence, in that case, this sentence would be mere surplusage, and inoperative. To disregard those words would violate a cardinal rule of interpretation-that effect must be given, if possible to every word of a will. Hart v. Board of Church Erection Fund, Com.Pl., 14 Ohio Supp. 8.
In conclusion: Whether the interests are vested at the testator's death or the widow's death, in either event to construe the words ‘heirs of body’ as children violates fundamental and controlling rules of construction. ‘Third: When did the estate devised to these seven children vest?
We think there can be little or no question but that, in Ohio, it has been settled beyond controversy that where the possession is postponed merely to accommodate an intermediate estate (his widow's life estate) the interest of the remainder man (the children of the testator) vests at the death of the testator. Ohio Nat. Bank v. Boone, 139 Ohio St. 361, 40 N.E.2d 149, 144 A.L.R. 1150;Tax Comm. v. Oswald, 109 Ohio St. 36, 141 N.E. 678;Linton v. Laycock, 33 Ohio St. 128;Imhoff v. Imhoff, 59 Ohio App. 394, 18 N.E.2d 411; Executors of Eury v. State, 72 Ohio St. 448, 74 N.E. 650.
It is true, however, that in the case last decided (covering this subject) by the supreme court (Ohio Nat. Bank v. Boone, 139 Ohio St. 361, 40 N.E.2d 149, 154, 144 A.L.R. 1150, supra) there was a divided bench, a 4-3 decision. We note that one of the ‘majority,’ Judge Bettman, no longer is a member of that court. Naturally one might query as to what the decision of that court would be if a similar question as that then presented was again before the court.
And yet we have no misgivings as to what the court would say in the case at bar. Simply because the ‘minority’ judges dissented thusly:
‘In our opinion, this case comes within the principle declared in the case of Barr v. Denney, 79 Ohio St. 358 [368, 369],87 N.E. 267, and was, therefore, correctly decided by the Court of Appeals.’
Averting to that case (Barr v. Denney) we find the court saying [79 Ohio St. 358, 87 N.E. 268]:
‘But if there is a gift over in futuro after the expiration of an intermediate estate, not to specified individuals, or to a definite class, but to persons not ascertained or not in being at the time of the bequest, the legacy is contingent and does not vest until the time of distribution.’
In this case there was a ‘gift over in futuro’ ‘to specified individuals'; and in this case there was not lacking a fund that ‘could not be raised until the death of the widow,’ to be divided between persons then living. (Emphasis ours.)
The case of Linton v. Laycock, 33 Ohio St. 128, is a pioneer case that has had numerous assaults upon it's holding over a period of three-fourths of a century.
We cite without quoting the last paragraph on page 134 of 33 Ohio St. and the second and third paragraphs of the opinion in that case.
In the case of Executors of Eury v. State, supra, 72 Ohio St. at page 454, 74 N.E. at page 651, Summers, J., says:
‘For it is the rule no longer that where there is no gift but by a direction to pay, or divide and pay, at a future time, or on a given event, the vesting will be postponed until after that time has arrived or that event has happened, but the test is the reason for the postponement; and, if that was that the property had been given to another for life, the bequest vested.’
This case is quite similar to that of Jeffers v. Lampson, 10 Ohio St. 101.
In that case there was devised a remainder in fee after the determination of the life estate. Here there was devised a fee tail after the determination of the life estate.
In perfect accord with the decisions discussed above is the opinion on the case of Doe v. Considine, 6 Wall. 458, 475, 18 L.Ed. 869, 871, from which we quote:
‘Adverbs of time-as where, there, after, from, etc.-in a devise of a remainder, are construed to relate merely to the time of the enjoyment of the estate, and not the time of the vesting of the interest.’
See, 2 C.J., After, p. 395; 2 C.J.S., After, p. 1008.
‘Like the words ‘from,’ ‘succeeding,’ ‘subsequent,’ * * * ‘after’ * * * Its true meaning therefore in any particular case must be collected from its context and subject matter, which are the only means by which the intention is ascertained.' 2 C.J., page 396, Note.
That the testator intended that the heirs of the body of a deceased child should succeed to that child's interest, is clear in view of the language in the gift over. It was to go to the remaining (other) children only in the event the deceased child died without issue. Thus plainly implying that the issue, if any there be, should take the deceased parent's share. To give effect to that implied intention, such an interpretation should follow as would effectuate that intention.
We do not believe it will be denied that, if the interest of Catherine Krieger vested at the testator's death, the possession being postponed to accommodate the intermediate life estate, her children, as the issue of their mother (first donee in tail), at her death took through her in fee, the one-seventh that had been so entailed.
On the other hand, if the interest devised to the mother in tail was contingent, and she having died before the life tenant, that interest would lapse. If she took nothing in tail, the issue, of course, could take nothing through her. When some act or event (here, if devise is contingent, death) has ‘destroyed the entail, it necessarily destroys the remainder expectant on the estate tail.’ Kolmer v. Miles, 270 Ill. 20, 110 N.E. 407, 408.
While we are more content to use the words ‘remainder contingent’ instead of ‘remainder expectant,’ still the rule announced abides whatever we may designate the remainder.
This, of course, because the issue must take through the first donee in tail by descent.
Nor does the statute (10504-73) prevent that lapse by vesting that interest in her children. See Ohio Nat. Bank v. Harris, 126 Ohio St. 360, at pages 364, 365, 185 N.E. 532, at page 534.
If Catherine Krieger's interest was contingent, and therefore lapsed, the gift over would not apply, as to that one-seventh the testator's would die intestate. The law frowns on a construction that creates intestacy.
Hence it is important, at least so far as plaintiffs are concerned, to determine whether the devise to Catherine Krieger and the heirs of her body was vested or contingent. Fourth: If either of the five children now living dies without issue him or her surviving, what becomes of the estate devised to him or her?
It cannot be said that the gift over is invalid because limited after a fee tail. In 69 C.J. 581, the text reads:
‘A remainder may however, be limited after the devise of an estate tail.’ The foot note cites in support of the text: Kolmer v. Miles, Ill.Sup., 110 N.E. 409; Hall v. Priest, 6 Gray, Mass., 18.
‘Where real estate is devised over in default of heirs of the first devisee * * * so as to be in the course of descent from him, whether in the lineal or collateral line and however remote, as the prior devisee in that case could not die without heirs while the devisee over exists, the word ‘heirs' is construed to mean heirs of the body, and accordingly the estate of the first devisee, by the effect of the devise over, is restricted to an estate tail, and the estate of the devisee over becomes a remainder expectant on that estate.’ Kolmer v. Gray, Ill.Sup., 110 N.E. 409.
The text in 31 C.J.S., Estates § 78, p. 94, says:
‘The particular estate necessary to support a remainder must be of such quantity as would leave a reversion in the grantor, had the particular estate been the only interest conveyed.’
Certainly, if, in the instant case, the seven children had been given a life estate and no further disposition of the lands made, the interest in the lands of any child would revert to the testator's estate at the death of that child.
The author also says (same section), ‘A remainder may, however, be limited after an estate tail,’ citing in footnote, Dorr v. Johnson, 170 Mass. 540, 49 N.E. 919;Nellis v. Nellis, 99 N.Y. 505, 3 N.E. 59. Thompson on Wills, 2d Ed., 355; Thompson, Construction of Wills, Sec. 490; 21 C.J. p. 990, 991, and cases cited in note 73 and note 86; 31 C.J.S., Estates, § 78; Thompson's Lessee v. Hoop, 6 Ohio St. 480.
In endeavoring to designate the particular estate given to the other children in the event of a child dying without issue, we have read the opinions in Dungan v. Kline, supra; Hall v. Priest, supra; Kilmer v. Miles, supra; and the discussions in Thompson, Construction of Wills, Secs. 490, 491, 492, 502.
In some respects the estate given by this last sentence in Item 3 has some of the attributes of an executory devise, mere possibility, expectant remainder, cross remainder, alternative remainder, contingent remainder, or remainder contingent with a double aspect, to mention a few of the terms used in these opinions and discussions.
As we have concluded to designate that particular estate as a ‘contingent remainder,’ which each of the seven children took in the estate in remainder given in fee tail to each of the other six children, the contingency being, of course, that the particular child should survive another child (brother or sister) who dies without issue.
For one of the testator's seven children to take under this last sentence in item 3 of this will, these conditions must exist: (1) One of the seven children must die (2) without issue, and (3) another of the seven children must survive. A contingent remainder, perhaps, with a ‘double aspect.’ But to add those two words to the term ‘contingent remainder,’ while it might not be inapt, we cannot see that it tends to clarity.
From all this, we concluded:
First: That, had there been no gift over, the devise entail to any one of the seven children, who died leaving no surviving issue, would lapse. See, 10512-8, G.C. Thompson on Wills, 2d Ed., sec. 490, p. 581, and annotations 12 and 15; Evangelical Lutheran St. Pauls Unaltered Augsbierian Confession v. Sheffield, 90 Ohio St. 467, 108 N.E. 1119.
Second: The gift over to children would also lapse as to any other child who had predeceased the child who died without issue. That lapse is not saved by the statute, 10504-73, G.C. This statute was amended 63 O.L. 43, apparently for the purpose of creating the precise result present here. Shumaker v. Pearson, 67 Ohio St. 330-332, 65 N.E. 1005;Knepper v. Knepper, 103 Ohio St. 529, 134 N.E. 476; and Ohio Nat. Bank v. Harris, 126 Ohio St. 360, 185 N.E. 532.
The words ‘die without issue’ ‘are to be interpreted as referring to the time of the death of the first taker’ (one of the seven children). Briggs v. Hopkins, 103 Ohio St. 321, 132 N.E. 843. Fifth: What are the several interests in this land of the respective parties herein?
From the opinion hereinbefore expressed on the several preceding questions, in necessarily follows that the court holds:
That at the death of the testator, each of his seven children took a fee tail in an undivided one-seventh part of the lands, the possession postponed to await the determination of the intermediate life estate of the widow.
The seven children each also took, by the gift over, a contingent remainder in each of the other six children's share. That remainder vesting as to the share of such, if any, of said seven children as survived any child dying without issue.
The statute, 10504-73, G.C., as construed in Ohio Nat. Bank v. Harris, 126 Ohio St. 360, at pages 364, 365, 185 N.E. 532, at page 534, does not prevent a lapse of any interest which was devised to a child who predeceased such child who died without issue. Hence it is immaterial whether the word ‘remaining’ should or should not be construed as ‘other’. Sixth: What right have the five living children and Mary Keller's children to enforce the payment of this $300 legacy as a charge against the land?
Had there been no adequate personal estate to apply to the payment of this legacy, the fact that in the next item he gave the residue of his estate to his seven children could imply an intention on the testator's part that the land was to be charged with this legacy. Knepper v. Knepper, 103 Ohio St. 529, 134 N.E. 476.
To enforce it necessitates resorting to a court of equity, and a court of equity must refuse to act if the claim is stale. 21 C.J. page 217; 30 C.J.S., Equity, § 115; Russell v. Fourth Bank, 102 Ohio St. 248, 131 N.E. 726; Pages Digest, Vol. 4, pp. 736-738.
Prejudicial changes-as here, the dissipation of the personal estate-are an important item to be considered. Hence it becomes important to determine the amount and disposition of the personal estate. 21 C.J. 231; 30 C.J.S., Equity, § 118; Kemper v. Apollo Building & Loan Co., 11 Ohio Cir.Ct.R.,N.S., 372.
Inasmuch as there is some uncertainty as to the amount of personal estate and its disposition, on which more evidence is to be presented, the validity of the assertion of this legacy as a lien will be passed for consideration after a partition or sale has been had.
So these questions will be passed. Seventh: The Remedy.
There are two:
(a) The court could order partition, and, in the event of a division, the rights of each of the several (five) surviving first donees in tail and of the respective remaindermen would be transferred to the land aparted to that particular donee in tail and remainderman.
Or, if sold, then that right of each of the five first donees in tail and the respective remaindermen would be transferred to that fund.
(b) Or the court could order the land sold as an entailed estate.
In either event, the funds representing the entailed estate would be handled responsive to the statute, 11925, G.C. Mendenhall v. Leyland, Com.Pl., 4 Ohio Supp. 130, and annotations to the statute.
We would like an expression from counsel as to which remedy should be pursued.
Exceptions to all parties.
Appeal noted for all parties.