Folsom v. Board of Trustees

Mr., Justice Hand delivered the opinion of the court: It is contended by the defendants in error that the finding of the Supreme Court of Ohio that the devise and bequest to the plaintiffs in error was revoked by the action of Isabel Page in ratifying" and confirming the devise and bequest made by Henry F. Page, deceased, to the university, is conclusive upon the plaintiffs in error on that question in this court. We do not agree with such contention. The land is situated in this State, and it has repeatedly been held by this court that the validity and construction, as well as the force and effect, of all written instruments affecting the title to land depend upon the law of the State where the land is situated. It is also held that the rule applies with the same force to a will that it does to a deed or other instrument in writing, and that the courts of the respective States will-construe for themselves wills or other instruments in writing affecting the title to lands situated in the State wAere the court is held, and will not be governed by the decisions of courts with reference to the title to lands not situated in the State where the decision is made, except in so far as such decisions conform to the views of the court within whose jurisdiction the land is situated. (McCartney v. Osburn, 118 Ill. 403; Harrison v. Weatherby, 180 id. 418). We are of the .opinion, however, that the Supreme Court of Ohio (Board of Trustees v. Folsom, 56 Ohio St. 701; Thomas v. Board of Trustees, unreported,) was right in holding that the provisions of the statute of that State declaring invalid all devises and bequests of real and personal property for benevolent, religious, educational or charitable purposes, where the testator dies within one year from the time of the execution of bis will, were made for the protection of the persons named in said statute, viz., the issue of the testator’s body or his adopted child and the legal representative of either, and that the person or persons named in the statute may waive the protection of the statute and ratify and confirm a devise or bequest made for benevolent, religious, educational or charitable purposes although the testator die within one year from the execution of his will, which devise or bequest, but for such waiver, ratification or confirmation, would be invalid. At the time of the death of Henry Page, which occurred within one year from the date of the execution of his will, he left surviving him as the sole issue of his body, Isabel Page. The devise and bequest to the university as to her was invalid. She, however, in compliance with her father’s request, ratified and confirmed the devise and bequest to the university. If, however, it be held that she could hot confirm the devise and bequest to the university so as to vest the title in the university, clearly the effect of the execution of the deed of confirmation was to revoke the devise and bequest to the plaintiffs in error, as the will provided, in express terms, the devise and bequest to the children of George Folsom and Charles Folsom, deceased, should be revoked in case Isabel Page ratified and confirmed the devise and bequest to the university. If the university did not take the title, through the will, by the act of ratification and confirmation on the part of Isabel, the property then passed to her as intestate property, she being the sole heir of Henry F. Page, deceased, and her deed to the university' of the land in question, invested the university with the title thereto. The fact that the conveyance from Isabel to the university was contained in the same instrument which sought to ratify and confirm the devise and bequest to the university would not prevent the title passing, by virtue of such conveyance, from her to the university. Neither was the fee of the property of Henry F. Page willed to Isabel in trust for the benefit of the university. She might have declined to ratify and confirm the devise and bequest to the university had she elected so to do. Prom a careful examination of this record we have reached the same conclusion reached by the chancellor who heard the case below, and are of the opinion the decree of the circuit court should be affirmed, which will accordingly be done. ^ „ „ 7 & J Decree affirmed. > i