The plaintiff bank company brought an action to enforce a judgment lien on certain real estate in this county and to foreclose a mortgage thereon. Certain of the defendants filed cross-petitions asserting liens on the land. The other defendants, as descendants of Francis H. Freyer, claim liens on the land as legatees under the provisions of his will. If the claims asserted by the legatees and their next of kin exist, they are prior to all other claims against the land except taxes and costs.
The facts involved are not in controversy. Francis H. Freyer died testate in August, 1902, and his will was duly probated. He left surviving him six children. Item 3 of the will, which is involved in this action, reads as follows: "I give and bequeath to my son John G. Freyer all of my horses, chattels and farming utensils of every description; also all house furniture after my wife's death; and all of my land in Section No. thirty-four in Troy Township, Wood County, Ohio, of which he is to pay my wife ninety dollars per year as long as she may live, out *Page 218 of which he is to pay to my daughter Maria S. Freyer, Francis Hy. Freyer, Clara L. Freyer two hundred dollars each, and to Anna C. Freyer he is to pay twelve hundred dollars, he is to pay when she arrives at the age of twenty-eight years old and five hundred dollars within six months after my wife's death; also he is to pay four hundred dollars to all of my heirs to be equally divided after my wife's death."
After the probate of the will of Francis H. Freyer, the son, John G. Freyer, named in item 3, accepted the devise provided for him and took possession of the land, subject to the payment of the legacies. This son died intestate and without issue in August, 1906, and the widow of the testator died on July 9, 1928. The $500 directed by this item of the will to be paid to Anna C. Freyer six months after the death of the testator's widow, and the $400 to be paid at the time of her death, have not been paid. All of the children of the testator are deceased except the defendant Clara L. Huerman, who is named in the will as Clara L. Freyer. They all died intestate, some of them leaving children and some without issue. Anna C. Freyer Brinker, one of the children, died in 1900 before the testator, and the legacy provided for her would pass directly from the testator to her only child, Martin Brinker. On the death of John G. Freyer in 1906, the land descended to his surviving brother and sisters and to the children of such as were deceased. These legatees, and the children of such as were deceased, joined in a deed of the premises to one of the heirs, Maria S. Fahle, and her husband August Fahle, and thereafter *Page 219 said grantees conveyed the premises to the defendants Elmer Schutt and Lydia M. Schutt.
Under these facts it is contended by the plaintiff that, when the legatees acquired the legal title to the land by inheritance from John G. Freyer, the legacies which were provided for them in the will of Francis H. Freyer became merged and extinguished, and cannot, therefore, now be asserted. Under circumstances usually existing there would be much force in this contention, for ordinarily such merger would result. But in the case at bar the legacies to the various legatees were of unequal amounts, it being stipulated by counsel that the amount of the legacy due to Martin Brinker is $645, to Clara L. Huerman $106.50, and to each of seven other descendants the sum of $26.88. The substantial inequality in size of these legacies prevents applying the doctrine of merger. Merger, in a case of this character, is a creature of equity and can only be applied in accordance with equitable principles. To illustrate: If A be given, by the will of his father, a legacy of $1,000, charged upon real estate of the value of $10,000, and he afterwards inherits the real estate from his brother and takes possession of the same, the lien of the legacy would be merged in his greater title to the real estate, and the legacy be extinguished. If, however, another brother, B, should be given, in the will, a legacy of $2,000, which was made a charge on the same real estate, and thereafter the two brothers, A and B, inherited the real estate from the brother to whom it had been devised, the legacies charged thereon would not be merged, nor extinguished, because it would be inequitable and unjust to the son who received the larger legacy, *Page 220 for the reason that, if the legacies became merged or extinguished when they inherited the land, each would own an undivided one-half of the land, and nothing more. It would therefore result, if the legacies were held to be merged and extinguished, that the brother B, to whom was given the $2,000 legacy, would be involuntarily relinquishing $500 to his brother A.
This court, therefore, holds that the mere fact that the legatees accepted the inheritance of the real estate from John G. Freyer did not merge the liens or extinguish the legacies, but that they must be kept alive to be adjusted on equitable principles.
It is claimed, however, by the plaintiff, that from the fact they united in a warranty deed to the defendants Maria S. Fahle and August Fahle, and from the further fact that said grantees conveyed the premises by warranty deed to the defendants Elmer Schutt and Lydia M. Schutt, the legacies thereby became extinguished. This contention ignores the very important exception in the warranty clause of each deed, reading as follows: "Except the provisions in Item 1 of the last will and testament of Francis H. Freyer, which these grantees assume and agree to perform as set forth therein. The said grantees also assume and agree to pay the last two payments of item 3 of said will according to its terms. Said grantors guarantee that all the other provisions of said will have been performed, which pertain to the land herein described."
The language of this exception clearly shows a manifest intention to keep the legacies alive, and thus to accomplish equitable adjustment of the rights of the several legatees, and this intention, and *Page 221 the exception contained in the deed, will be protected and enforced by the court. It follows, therefore, that the amounts remaining due on the various legacies are liens upon the real estate.
It is urged by counsel for the plaintiff that, when various legatees died, the right to recover the legacies provided for them passed, not to their next of kin, but to their administrators, and cannot be enforced in this action by the next of kin of the deceased legatees. The next of kin of the deceased legatees are not asking a personal judgment for the amounts of the various legacies, but only that the same be declared to be the first and best lien on the lands upon which they were charged by the will. As the undisputed facts show that these legacies are liens upon the land, the court may so declare. If necessary to protect the other parties from possible inheritance tax or other claim, the legatees may give an indemnity bond for their protection on receiving the legacies.
The general rule in an action at law as to the devolution of the personal estate of a decedent is set forth in McBride, Admr., v. Vance, 73 Ohio St. 258, 76 N.E. 938, also reported and annotated in 112 Am. St. Rep., 732, and 4 Ann. Cas., 191. See, however, Catlin v. Huestis, Exr., 11 C.C., 120, 5 C.D., 23.
Judgment and decree will be rendered for the heirs of Freyer.
Judgment accordingly.
WILLIAMS, J., concurs.
LLOYD, J., not participating. *Page 222