Akers v. Akron, C. & Y. Ry.

said real estate, and for the recovery of damages for trespasses already committed.

The defendant, the Akron, C. & Y. Ry. is a railroad corporation, organized under and by virtue of the laws of Ohio, and claims to be the owner of that part of the real estate mentioned in the plaintiff's petition which is described in its answer, and to be in possession thereof.

The conflicting claims of title to the real estate in question are based upon the following facts:

Prior to October 24, 1884, Adam Fulmer was the owner in fee simple of the real estate described in the petition which embraces that also described in the answer. On that day he executed and delivered to his son, Daniel Fulmer, a deed which is recorded in book 153, page 260 of Summit county records of deeds, conveying said premises to the said Daniel Fulmer. Adam Fulmer and his wife joined in the execution of the deed, and by the granting clause thereof, in consideration of $10,000 they do give, grant, bargain, sell and convey unto the grantee, Daniel Fulmer, his heirs, and assigns, the real estate therein described, which includes that in controversy. The habendum clause of the deed contains the following language:

"To have and to hold said premises to the said Daniel Fulmer for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and assigns, forever."

By deed of May 20, 1893, recorded in book 213, page 56, Summit county record of deeds, Daniel Fulmer conveyed the real estate described in the answer to the Akron & New Castle Ry., and this company subsequently deeded said real estate to the defendant, the Akron, C. & Y. Ry.

Daniel Fulmer died January 14, 1903, leaving two children surviving him. The plaintiff claims title to the real estate in question through these two children.

If Daniel Fulmer acquired a fee simple estate by the deed from Adam Fulmer, then the said Daniel Fulmer conveyed a good title to his grantee, and that title has been acquired by the

Summit County Circuit.

defendant, the Akron, C. & Y. Ry. But if, on the contrary, the said Daniel Fulmer did not take a fee simple estate by the deed to him from Adam Fulmer, but only a life estate, as is contended by the plaintiff, then the children of Daniel Fulmer, upon his death, became the absolute owners in fee simple of the real estate involved in this action, and the plaintiff having acquired their title, would be the absolute owner of said real estate and entitled to the relief prayed for, unless other facts and principles of law invoked by said defendant should prevent him from obtaining such relief.

It is therefore essential that the deed from Adam Fulmer to Daniel Fulmer be considered, and the character of the estate thereby conveyed be determined.

It is claimed on behalf of said defendant that in construing the language of this deed, the rule in Shelly's case should be applied, and that by the application of this rule of law, it necessarily results that Daniel Fulmer took a fee simple estate in the premises conveyed.

It is contended on behalf of the plaintiff, however, that Daniel Fulmer acquired only a life estate in the premises conveyed by the deed, the remainder passing to his children.

In McFeely's Lessee v. Moore's Heirs, 5 Ohio, 464 [24 Am. Dec. 314], the rule in Shelly's case was stated in the following language:

"The rule is, where the ancester takes a freehold and by the same conveyance, whether deed or devise, the estate is limited, either mediately or immediately, to his heirs, the word 'heirs' is a word of limitation, not of purchase and the fee vests in the ancestor.'

In that case the testator had given his real estate to two persons named in his will, for their use during their respective lives, and had then provided, "But at their decease, my will is that these two tracts of land descend to their heirs, to whom I bequeath the same to have and to hold said tracts to themselves, their heirs and assigns, forever," and it was held that the provisions of the will interpreted by the rule of Shelly's case vested a fee simple estate in the parties named in the will.

Akers v. Akron, C. & Y. Ry.

In King v. Beck, 15 Ohio, 559, it was said in the opinion of the court, on page 562:

"The rule in Shelly's case is not a rule of construction but a law of property. It is not designed to give a meaning to words, but to fix the nature and quantity of an estate. If the estate for life created in the devisee or donee, is limited precisely as it would descend at law, the rule in Shelly's case vests the entire fee in the first devisee or donee."

In Brockschmidt v Archer, 64 Ohio St.. 502 [60 N. E. 623], part 1 of the syllabus reads as follows:

"Before the rule in Shelly's case was, as to wills, abrogated in this state by the statute of 1840, a testator devised certain lands to his son for life, and at his death to go to his heirs, and, there being nothing else in the will to show that the testator used the word 'heirs' to designate a more limited class as children: Held: That, as the lands passed under the will precisely as they would have descended at law, the son took an estate in fee simple in the lands so devised."

Reverting to the deed in question, it will be seen that the granting clause is in the usual form, and gives, grants, bargains, sells and conveys unto the grantee, his heirs and assigns, the premises therein described. By the habendum clause, the said Daniel Fulmer is "to have and to hold said premises for and during his natural life, with reversion at his death to his children, heirs of his body, and their heirs and assigns, and if he dies leaving no children or legal representatives, then the above is to be and remain the property of the brothers and sisters of Daniel Fulmer, their heirs and asigns, forever."

If the word "children" was used alone and not with the words "heirs of his body" following, the contention of the plaintiff would be well founded, and the word "children" in such case would be construed to be a word of purchase and not of limitation. But it is well settled that the words "heirs" or "heirs of his body" are to be construed as words of limitation and not of purchase, and the fact that the word "children" is here followed by the words "heirs of his body," indicates that the expression "heirs of his body" is to control.

It will be seen, also, that the estate here granted is limited precisely as it would descend at law, and in such case, the rule in Shelly's case vests the entire fee in the grantee.

Summit County Circuit.

In the Continental Mutual L. Ins. Co. v. Skinner, 2 Circ. Dec. 688 (4 R. 526) affirmed by the Supreme Court, Skinner v. Connecticut Mutual Life Ins. Co., 30 Bull. 307, the granting clause was in the following form, "Do give, grant, bargain, sell and convey unto said grantees and their heirs the following described property." Following the description, the deed provided: "All the lands above conveyed are to be held and enjoyed by the said Wilson L. Skinner and Abbie Jane Skinner, his wife, during their natural lives, and at their decease, are to go and pass to their heirs." It was held that the grantees took an estate in fee simple.

We are of opinion, therefore, that the rule in Shelly's case is applicable to the language of the deed from Adam Fulmer to Daniel Fulmer, and that, applying the rule, the said Daniel Fulmer took a fee simple estate in the lands described in the deed, and that the defendant, the Akron C. & Y. Ry. has a fee simple estate in the lands described in its answer.

This conclusion renders it unnecessary to consider the facts relating to the possession of the premises in dispute, or the other principles of law cited by said defendant to defeat the plaintiff's cause of action.

The petition of the plaintiff is dismissed.
Winch and Marvin, JJ., concur.

DAMAGES.

[Lorain (8th) Circuit Court, April 20, 1912.]

Winch, Marvin and Niman, JJ.

HENRY BUDDENBURG V. ANTHONY WEARSCH.

Instruction that Jury May Find Damages Less than Value Given by Witnesses.

When the question of the value of a horse is before the jury and witnesses have given their opinions as to its value, describing it, it is not error to instruct the jury that if it, from other evidence in the case, was of the opinion that the horse was worth less than the value put upon it by the witnesses, they might so decide upon their own judgment.

ERROR.

Buddenburg v. Wearsch.

Q. A. Gillmore, for plaintiff in error.

Fauver & Rice, for defendant in error.

WINCH, J.

Defendant in error was plaintiff below, and recovered a judgment against plaintiff in error for the wrongful death of his mare, which he claimed resulted from the negligent use of a pistol by Buddenburg on the premises of Wearsch.

It appeared from the evidence that on Thanksgiving day, 1908, the parties to this action, who are brothers-in-law, and Joe Wearsch, brother of Anthony, had been out hunting in the forenoon, and came back to the Wearsch farm about noon. There they probably had some hard cider, and fell to discussing the relative merits of a new revolver owned by Henry and an old one belonging to Joe. They decided to try the "guns," as they called these revolvers, and Joe and Henry went outside the house to shoot at a mark east of the house; some horses, among them the mare which was killed, were north of the house. The old gun didn't work very well and it went off unexpectedly in the hands of either Joe or Henry, and probably this shot hit the mare, although nobody at the time knew of that fact. The horses ran off down the lane to the woods, and toward evening the mare was found suffering in a fence corner and had to be put out of her misery.

Joe says the revolver went off in Henry's hands; the hired man was the only other person present at the time; he is uncertain as to whether the gun exploded in the hands of Henry or Joe; at least he contradicts himself upon the question. Anthony and his wife testify that Henry came in to wash the powder marks off of his hand, then went out again, and he and Joe and Anthony, who went out with them, continued to shoot at a mark, the old revolver meanwhile having been fixed up so that it would work properly.

In the evening, after they had killed the mare, Anthony testified that Henry said he had shot the mare and that Anthony should go and buy another horse and he would pay for it, and within a week Henry did give him twenty dollars towards payment for the new horse.