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Melick and wife ». Darling.

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To create a case of election, there must be a plurality of gifts or rights, with an intention, express or implied, of the party who has a right to control one or both, that one should be a substitute for the other. The party who is to take has a choice, but he can 351] not enjoy the benefits of both. The doctrine of election, *says Justice Story, is borrowed from the civil law, and by it a testator may bequeath, not only his own property and that of his heir, but also the pronrty of other persons; so that the heir may be obliged to purchase and deliver it, or, if he can not purchase it, to give the legatee its value. To give effect to a legacy in such case, it is necessary the testator should know the property bequeathed by him was not his own; and the devisee, whose property has been thus disposed of, can hold, under the will, only by giving up his own, by wbich alone the will can have effect. 2 Story's Eq, 338.

Is this, then, a case of election ? This must be determined from the whole provisions of the will. The testator when he executed bis will was a tenant in common.only with the defendant. The southwest quarter of section seven, etc., was patented to both. The testator, therefore, it is true, owned but a moiety, and in the devise in question he gives the south west quarter of section seven, etc., to his grandson, Jeremiah Beatty. The language, it is said, is plain, clear, and operative, and includes the whole tract.

The case does not appear to us to be so clear "that he who runs inay read;” but nevertheless, when we consider the almost perfect quality with which the testator has distributed his property among bis children and grandchildren; that when he has given to one, he has likewise given to others, "share and share alike," a majority of the court arrive at the conclusion that by the devise of the whole quarter to Jeremiah Beatty, the testator only designed to convey his own interest. This construction places the devisee on an equality with the other grandson, to whom the balf of another quarter in the same section is given, and carries out the general design of the testator, arising on the face of the will, of placing his devisees on a perfect equality in the disposition of his property; sons, daughters, grandsons, and granddaughters, with few exceptions, share and share alike."

We think no case of election is created, and the bill must be dismissed. Bill disinissed.

Lewis et al. v. Baldwin et al.

*John S. LEWIS ET AL. v. CHARLES R. BALDWIN ET AL. [352

A wife may transmit her separate estate, through the intervention of a trustee,

to her husband. A conveyance to A. and B., and their heirs, and to the survivor of them, and

to the heirs of such survivor, vests in the survivor an estate in fee.

This is a bill in chancery, from the county of Franklin.

This bill seeks to set aside a deed executed by Charles R. Bald. win and Mary Jane, his wife, to Robert O. Spencer, in trust, and a deed executed by said Spencer to Charles R. and Mary Jane Baldwin, to them jointly, their heirs and assigns, and to the survivor of them, his or her separate heirs and assigns. The bill sets forth that said Mary Jane owned 783 acres of land, lying in Franklin county, and that she was young at the time of her marriage with respondent Baldwin; was, shortly after her marriage, afflicted with a lingering sickness which terminated her life without issue, and so preyed upon her constitution as to reduce her to a state of debility bordering on infancy, and placed her under the influence and control of her husband, who availed bimself of bis ascendancy, and, shortly before her death, caused her to execute the deed in question. The answer denies all the charges of undue influence, imbecility, and all fraud. The substance of the testimeay, and the points made, are stated in the opinion of the court.

T. Ewing, for complainants.
STANBERY & Van Trump, for defendants.

BIRCHARD, J. The proof establishes these facts: That Baldwin and wife were an affectionate couple; that she reposed entire confidence in him, as her husband, friend, and spiritual *guide; [353 and it does not show that he was in any respect unworthy of the affection and trust bestowed upon him by this devoted wife. He was a circuit preacher of the Methodist Episcopal church, dependent upon a limited annual stipend for his support. His wife was in ill health, and desirous to bestow upon him a portion of tbe fortune she bad inherited from her parents, in case she should be removed by early death. To accomplish this object, the dued in question was executed, as appears from the deed and answer,

Lewis et al. v. Baldwin et al.

at her own instance, three montbs before her death, at a time when she was able to ride four miles, in company with her sister, and another young lady, to effect this object, and when, for aught that appears, she was of sufficient mental capacity to make a contract. We are of the opinion that there is not proof, in this case, sufficient to require or justify the setting aside these conveyances, on the ground of want of capacity in Mrs. Baldwin, or for the exercise of any improper or undue influence over her, at the time of executing them.

It is objected, in the next place, that a conveyance by a husband and wife of her separate estate to trustees, upon trust to reconvey to them jointly, is invalid in law and equity. It is assumed that the deed is liable to the same objection that exists to a transaction of the kind between guardian and ward. There does not seem to be much analogy between the two cases. Our statute authorizes a wife to convey her property by pursuing a given form, which, in this case, was pursued. Nor can she be treated as laboring under any of the peculiar disabilities incident to infancy. The law does not attempt to limit or control her judgment in the disposition of her property. It is true she can not convey directly to her husband; and the reason is to be found, not in the fact that he is supposed to have an undue influence over her—not that there is any. thing unnatural in a wife's desire to make provision for an affectionate and beloved husband, out of her more ample fortune, but, in the legal fiction, that, by marriage, her existence is merged in that of her husband, and therefore one of the two parties neces354] sary to make a valid contract is wanting. Hence, in a *conveyance from husband to wife, or e converso, the intervention of a trustee is necessary to effect the object; such is the authority in 4 Mason, 45, where a conveyance, scarcely distinguishable in principle from this, was sustained.

The next objection is a want of consideration. The deed of trust expresses the consideration of one dollar, and, in substance, a desire, from love and affection, to make provision for her hus. band, inasmuch as her brothers and sisters are otherwise amply provided for. Would it be doubtful, in a case where other persons than husband and wife were parties, that this consideration is sufficient? If not in such a case, why should it be in this ? Counsel have furnished us no satisfactory reason, and none occurs to our own minds.

Loring o. Melendy et al.

The remaining question is, as to the nature of the estate conveyed by the deed from Spencer, the trustee, to Baldwin and wife. The grant is to them "jointly, their heirs and assigns, and to the aurvivor of them, his or ber separate beirs and assigns."

Complainants contend that this makes them tenants in common with Baldwin, because, otherwise, the deed would be considered as creating a joint tenancy. But the respondent, Baldwin, has a fee by the terms of the grant, which was to him as survivor, and to his heirs and assigns. The deed gave a joint estate to the busband and wife, during their lives, and a grant over to bim, as survivor, of the entire estate.

No perpetuity is created by such a grant. He holds title, not upon the principle of survivorship, as an incident to a joint tenancy, but as grantee in fee, as survivor, by the operative words of the deed. The entire estate, by the death of the wife, is vested in him and his heirs. This is the effect of the words of grant, contained in the instrument of conveyance. Bill dismissed.

*DAVID LORING V. JOHN MELENDY, E. W. CHESTER, ED- (355

WARD D. MANSFIELD, ARTHUR ELLIOTT, ET AL.

Where, prior to a judgment, a permanent leasehold estate has been conveyed

by deed, absolute upon its face, though intended as a security, there only remained an equitable interest in the judgment debtor, to which no judge ment lien attached; and a judgment creditor who first pursued the equity

by bill, is entitled to be first satisfied. A permanent leasehold estate is not a chattel, but is realty, subject to all the

laws and rules which attach to land.

This is a bill in chancery from Hamilton county.
The facts are stated in the opinion of the court.

E. S. HAINES, for complainant, cited 1 Ohio, 314; 5 Mass. 419; 6 Ohio, 162, 163; 4 Johns. Ch. 690; 3 Ohio, 465, 517; 8 Ohio, 22, 23.

H. HALL, for defendant Melendy.

READ, J. This bill was filed to subject an equity to the satis

Loring v. Melendy et al.

faction of a judgment at law, and involves a question of priority of liens.

Judgment at law had been obtained against E. W. Chester, in favor of Loring, Elliott, and the Lafayette Bank.

Chester, the judgment debtor, had conveyed the premises in question to John Mclendy, by deed, absolute upon its face, though in fact a mortgage, bearing date April 13, 1838, which was recorded on January 2, 1839. The premises thus conveyed were a perpetual leasehold estate—a lease for the term of ninety-nine years, renewable forever.

Elliott bad obtained two judgments against Chester and Mangfield, the latter as security, at the October term of the superior court of Hamilton county, 1838, and caused execution to be levied upon said leasehold estate on March 19, 1839. 356] *David Loring, the complainant, also obtained a judgment against Chester at January term of said superior court, 1839, and caused execution to issue, which was returned nulla bona. Loring tiled his bill to subject the equitable interest of Chester in said premises, to satisfy his judgment, on April 17, 1839, subsequent to Elliott's levy.

Judgment was also obtained against Chester, in favor of the Lafayette Bank.

Under this state of facts, Melendy claims that his debt, secured by mortgage, shall be first satisfied.

Elliott claims to overreach Melendy's mortgage, by virtue of a judgment lien obtained prior to the recording of the mortgage.

Loring claims that Chester's interest in the premises is but an equity, and that having first filed his bill, to subject it, he is entitled to have his judgment first satisfied, after Melendy's mortgage debt, and that the other judgment creditors are entitled but pro rata to the residuo.

These questions are all disposed of by determining the nature of Chester's estate in the premises.

By the execution of the deed to Melendy, which was prior to all the judgments, Chester's whole legal estate passed, and left with him the bare equity to redeem on payment of the debt secured. The deed was absolute upon its face, and, for all legal purposes, transferred the whole legal estate. Judgments and executions at law can only affect and reach the legal estate. In Baird v. Kirtland, 8 Ohio, 23, the court say, in order that a

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