Opinion
No. 23079
Decided April 27, 1932.
Court of Appeals — Appellate jurisdiction — Forfeiture of life tenant's estate for waste, not chancery case — Section 8593, General Code — Section 6, Article IV, Constitution — Executor's action to forfeit estate, sell and distribute under will.
1. An action under Section 8593, General Code, to forfeit a life estate on the ground of waste, is legal in character, and not appealable.
2. Where a will, not establishing a trust, creates a life estate, and the life tenant, having entered upon his tenancy, violates certain conditions of the will as to such life estate, an action instituted by the executor of the will, on behalf of the estate and those interested therein, to forfeit the life estate and obtain possession of the land, for the purpose of selling the same and distributing the proceeds in accordance with the terms of the will, is not a chancery case.
ERROR to the Court of Appeals of Greene county.
This is an action wherein it is sought to reverse the Court of Appeals of Greene County. In the court of common pleas of that county an action was brought by the executor of the last will and testament of Martha Seiver Oglesbee who died on December 21, 1921; the executor seeking to forfeit the life estate of George D. Oglesbee for violating the terms of a will creating the life estate, in that he "has failed to keep said farms in a state of good cultivation, has failed to keep the buildings and fences in good repair, has permitted the taxes to become delinquent upon said premises, and has failed, neglected and refused to keep the improvements on said premises insured, and that the said George D. Oglesbee, in violation of the provision that he shall not sell or convey away his estate therein, has permitted said estate to be advertised for sale at public auction by the sheriff of Greene county, Ohio, to be sold on the twenty-third day of November, 1929, by Ohmer Tate, sheriff of Greene county, Ohio, and that by reason of the facts set forth herein and the failure of the said George D. Oglesbee to observe the conditions of the will, and the provisions of the statutes in regard to life tenants, he has forfeited his rights and title under the provisions of the will and the statute in said state."
So much of the will as is pertinent to the questions involved is as follows: "I give, devise and bequeath to my husband, George D. Oglesbee, all my property both real and personal, to have and to hold the same for and during his natural lifetime, or so long as he remains my widower, with the following conditions, said husband to keep said farms in state of good cultivation and the buildings and fences in good repair, and all taxes paid and the improvements kept insured for as much at least as they shall be at my death, and said husband not to sell any timber off of said premises, but to have the right to use so much of the timber as may be necessary to keep said farm buildings and fences in repair. And further conditioned that said husband shall not sell or convey away his estate therein."
The executor brings this suit, as said executor, on behalf of said estate and the persons interested therein, and prays that the court may decree the estate and interest of the said George D. Oglesbee forfeited, and that said executor may be ordered and directed to proceed to carry out the terms of said will which are provided for at the termination of the said life estate of the said George D. Oglesbee.
The common pleas court, trying the case without the intervention of a jury, found generally in favor of the executor of the will and against the life tenant, George D. Oglesbee, and ordered "that the life estate of said George D. Oglesbee in and to the real estate described in the petition be declared forfeited, and that the said premises therein described be turned over to the plaintiff as the executor of the estate of Martha Seiver Oglesbee, deceased, for the purpose of selling said premises and distributing the proceeds therefrom in accordance with the terms of the will of said Martha Seiver Oglesbee, deceased."
From this order of the common pleas court the plaintiff in error prosecuted an appeal to the Court of Appeals, in which court a motion was made to dismiss the appeal, for the reason that the action is not a chancery case within the meaning of Section 6 of Article IV of the Constitution of Ohio. The Court of Appeals sustained this motion and dismissed the appeal. Error is now prosecuted to this court to reverse such judgment.
Messrs. Shawhan Brown and Mr. Charles L. Darlington, for plaintiff in error.
Messrs. Marshall Marshall and Messrs. Miller Finney, for defendants in error.
The sole question presented by the present record is whether or not, under the allegations of the petition, the action is one in chancery or at law. The right to the forfeiture of the life estate is based upon the terms of the will of Martha Seiver Oglesbee, and the trial court by its conclusion found that there was a violation of the terms of the will, entitling the executor to the relief sought.
The executor also claims the benefit of Section 8593, General Code, which reads as follows: "A tenant for life in real property, who commits or suffers waste thereto, shall forfeit that part of the real property of which such waste is committed or suffered, to the person having the immediate estate in reversion or remainder. Such tenant also will be liable in damages to the person having the immediate estate in reversion or remainder for the waste committed or suffered thereto."
We are of opinion that the executor, averring that he "brings this suit as such executor on behalf of said estate and the persons interested therein," stands in the stead of the "person having the immediate estate in reversion or remainder," and therefore the executor may claim the benefit of this section of the Code.
The rule as to whether or not an action is "a chancery case" was announced in Wagner v. Armstrong, 93 Ohio St. 443, at page 450, 113 N.E. 397, 399, where it is said: "Appealable cases, therefore, must be such cases as are now recognized as equitable in their nature; and perhaps the better way to express it would be, cases that were recognized as equitable actions before the adoption of the code of civil procedure * * *." This has been frequently followed.
The inquiry, then, is whether or not an action of the nature declared on in the petition was a chancery case before the adoption of the Code.
The theory upon which recovery is sought is that the life estate has terminated by its very terms as set forth in the will, because of the violation of certain conditions by the life tenant; also, that the commission of waste by the life tenant gives the executor a right of forfeiture under Section 8593, General Code. The executor, in effect, seeks a judicial determination of these questions of fact, upon which the legal title to the premises will depend, and a recovery of the specific property in order that he may sell it pursuant to the will.
In the final analysis this is a case involving the determination of a legal title and for the recovery of specific real property. If the case can be said to have any of the characteristics of a suit in chancery, these are merely incidental to the principal relief prayed for.
Attention may be called to the case of Raymond v. Toledo, St. L. K. C. R. R. Co., 57 Ohio St. 271, 48 N.E. 1093. We quote from the fourth paragraph of the syllabus, as follows: "A petition against a railroad company by one out of possession of real estate, which alleges title and right to possession of the land in plaintiff, and charges a wrongful entry and possession by defendant, and prays that the defendant may show his interest therein, that it may be adjudged null and void, and that judgment for the possession of the property may be awarded plaintiff, and defendant enjoined from interfering therewith until compensation is made, states a case for the recovery of specific real property, notwithstanding the petition also contains allegations of threatened irreparable damage, as a ground for relief by perpetual injunction, and of a dispute as to boundary lines, as a ground for action by the court in settlement of such dispute, and of a dispute as to title, as a ground for asking that plaintiff's title be quieted. Such action, being one in which either party may demand a jury, is not appealable." See, also, 16 Ohio Jurisprudence, 218, Section 94, under "Equity;" 2 Ohio Jurisprudence, 111, Section 76, under "Appeal and Error."
The statute, Section 8593, providing for forfeiture of the estate of a life tenant committing waste, did not define a pre-existing common-law right, but created a new right in the remainderman to recover possession of the property in the event of waste. The newly created right is legal, not equitable, in character. In an early case in this court, Crockett v. Crockett, 2 Ohio St. 180, it was held: The general rule is that "an account for waste committed * * * is not in itself a substantive ground of equitable relief, as the remedy at law is adequate." See, also, Livingston v. Tompkins, 4 Johns. Ch., (N.Y.), 415, 8 Am. Dec., 598; Smith v. Jewett, 40 N.H. 530; Birmingham v. Lesan, 77 Me. 494, 1 A. 151.
We are cited to the case of Gearhart v. Richardson, 109 Ohio St. 418, 142 N.E. 890, and also the case of Clark v. Clark, 110 Ohio St. 644, 144 N.E. 743.
The Gearhart case relates to the question of whether or not a will which creates a charitable trust presents a question of chancery character, which justifies an appeal from an order of the trial court in construing the trust. It was there held that such action was appealable, and with that conclusion we are content, charitable trusts being especially subjects of chancery jurisdiction. Clark v. Clark, supra, denies the right of one defendant, by filing against another defendant a cross-petition which states a chancery case, to convert the whole proceeding into a chancery case where the plaintiff has declared upon a law action in his petition. Neither of these cases is applicable to the question presented by the present record.
The case of Jenks v. Langdon, 21 Ohio St. 362, was an action to enjoin waste by a life tenant and to recover possession of the property. By its judgment the court enjoined the waste, but did not declare the life estate forfeited, or award possession to the plaintiff. In holding that the defendant had the right of appeal, Welch, C.J., said, at page 369: "I am not aware that by the law of Ohio a life estate, other than dower, is forfeited by the commission of waste thereon by the tenant for life. In the absence of statutory provision, contract, or devise, I am not aware that such is now the law in any of the States. This question, however, we need not now decide, and do not decide. For, admitting the forfeiture, and that this was a misjoinder of two actions, namely, an action to stay waste and compel an account, and an action to recover real property, it ceased to be two actions at the time of entering the final judgment or decree. In the action to recover the land there was no judgment to appeal from. The case stood at the time judgment was taken, as if that branch of it had been stricken from the petition, or discontinued."
In so far as that case involved an action to recover land, there was no judgment in the court below; hence, the case of Jenks v. Langdon, supra, would not seem to be an authority in the present instance. Further, the statute as to forfeiture for waste was not in existence when the Jenks case was decided, nor was any will involved therein.
The holding of this court in Crowley, Admr., v. Crowley, 124 Ohio St. 454, 179 N.E. 360, is called to our attention. That case decides that a proceeding by an executor asking the direction or judgment of the court, as authorized by the statute, respecting an estate which does not involve a trust, is not a chancery case and therefore not appealable. While the case is not especially in point, the language of the opinion, on page 460, may be noted: "It may therefore safely be said that the cases decided by the High Court of Chancery are authority for the proposition that where a will devises and bequeaths estates purely legal in character, and involving no trust relations, it does not present a chancery case."
The will involved in the present inquiry was before the court upon a previous occasion. Oglesbee v. Miller, Exr., 111 Ohio St. 426, 145 N.E. 846, but it is unnecessary to consider the question involved in that case.
Our conclusion is that this action is legal in nature and not equitable, and therefore the Court of Appeals was right in dismissing the appeal, such action not being a chancery case. The judgment of the court below will therefore be affirmed.
Judgment affirmed.
MARSHALL, C.J., JONES, MATTHIAS, ALLEN, KINKADE and STEPHENSON, JJ., concur.