Taylor v. Executors of Huber

BRiNKERHOEF, J. There is no controversy among counsel in this case, but that on the death of the testator, the legacy bequeathed by his will became vested in" his grandsons, David and Levi, though subject to the charge upon it in favor of their mother during her life; that on the death of David, his share of it passed by descent, subject to administration, to Levi, and on his death, no provision having been made in the will for these contingencies, that the whole passed by descent, subject to administration, to their mother, the plaintiff, as their next of kin. And it is claimed, in behalf of the administrator of the infants, in effect, that inasmuch as a regular course and succession of administrations, settlements and distributions, with their attendant costs, charges and consequent depletions of the original legacy, would be a regular course of proceeding at law, therefore the whole formula of such a course must be followed; and that the interest of the mother can reach her [292] only through this course of administrative distributions. While, on the part of the executors of the testator, it is claimed, that under the provisions of the will, they have the right to retain the fund until her death; that what she has inherited though then payable to her heirs, shall never reach her at all. We can not accede to either of these claims. Although a course of successive administrations and distributions would be regular at law, there is here no occasion for it, the children having left no debts to be paid or adjusted, and it would be dilatory and expensive. The executors, from the first, held this fund in trust for the grandsons of the testator, by the provisions of the will; and now, through-a contingency not foreseen or provided for by the will, that trust having wholly failed, they, by operation of law, hold it in trust for their heir, the mother. The title of the administrator of the infants, is subject to the like trust. These trusts equity has ample jurisdiction to enforce, and in proper cases, like this, will do so. Cram v. Green, 6 Ohio Rep. 429; Stiver v. Stiver, 8 Ohio Rep. 217; 1 Story’s Eq., sec. 593. A decree may be entered in favor of the plaintiff, Sarah Taylor, ordering the executors to deliver to her the securities in their hands, representing the fund in controversy, subject to any just and proper charges in their favor, which they may have incurred in its administration, and remaining unpaid; and subject also to such costs and expenses of administration on the estates of the infant grandsons, if any, as the court of common pleas, to which the case will be remanded, shall find, under all the circumstances of the case, to be strictly reasonable and just. Sutliet, C.J., and Peck, GholsoN and Scott, JJ., concurred.