On application for rehearing, counsel cite the case of Devoss v.Gray, 22 Ohio St. 159, and quote the following:
"If the plaintiff's petition be adjudged insufficient upon demurrer, and no leave to amend be asked for, it is not error to proceed to final judgment against the plaintiff, without granting leave to amend."
The foregoing statement of law is so well settled that we do not consider it necessary to repeat it, or to discuss in a technical way the statements in the petition with regard to whether there was a cause of action stated.
The demurrer, in searching the record, pointed out that the will and codicil of John Webb, Jr., were pleaded; that they created a trust, and provided for a trustee; that the action below was brought under *Page 205 Sections 10857 and 10858, General Code; that the petition states that John Benjamin Webb was a son of John Webb, Jr., and one of the distributees under said will; that John Benjamin Webb died October 29, 1923, leaving a will by which he gave to Elizabeth Voight Webb, his widow, this plaintiff, all his property, both real and personal; that John Benjamin Webb died without issue. And after stating facts relating to the making of the will, and the acts of the trustee, the petition recites that the trustee for about 22 years, after paying the taxes and necessary expenses, made annual division of the rents and profits of the estate of John Webb, Jr., to the five persons named as his children, John Benjamin Webb being one of them; that, subsequent to the death of John Benjamin Webb, said trustee refused to distribute any part of said income to this plaintiff; and that a dispute arose between the plaintiff, the trustee, and the other legatees under the will and codicil of John Webb, Jr., as to the construction of said will and codicil. And this plaintiff further states that, under the said codicil, she is entitled to participate in the distribution of said estate, as the widow of John Benjamin Webb, a devisee under his will and codicil.
Section 10857, General Code, provides for the bringing of an action by an executor, administrator, guardian, or other trustee, asking the direction and judgment of the court in any matter respecting the trust estate, the property to be administered, and the rights of the parties in interest.
Section 10858, General Code, provides that, after being requested in writing by a creditor or other party in interest to bring such action, and a failure *Page 206 for 30 days to so do, such other party making such request may institute the suit.
Section 10581 provides for the distribution of an estate on the death of a devisee or legatee, and contains this provision:
"If such devisee leaves no such issue, and the devise be of a residuary estate to him or her, and other child or relative of the testator, the estate devised shall pass to, and vest in such residuary devisee surviving the testator, unless a different disposition be made or required by the will."
Under the allegations of the petition and the provisions of the section of the statute referred to, it became necessary to construe the will in order that the trustee could make distribution, as provided in the codicil. Incidentally, it became a question whether Elizabeth Voight Webb, devisee under the will of John Benjamin Webb, had, or could have, an interest in the estate of John Webb, Jr.
The language of Section 10581, "unless a different disposition be made or required by the will," having been pleaded, and the duties of the trustee defined, the vesting of the residuary estate in the devisees at the period of distribution would determine the question whether John Benjamin Webb was vested with the property bequeathed to him under his father's will, so that he could devise it.
If it be claimed that, by the failure of the trustee to perform the duties imposed by the will and codicil, the legacy to John Benjamin Webb lapsed, and that the estate vested in the survivors, and therefore he had no interest that he could will to the plaintiff, the decision in the case of Larwill's Executors v.Ewing, 73 Ohio St. 177, 76 N.E. 503, would govern, *Page 207 wherein it was held that the statute does not apply, if to give it effect would defeat the declared intention of the testator.
In my former opinion, which I hereby adopt, it is stated that the intention of the testator was clear. It was that Mary Webb should be provided for; that certain specified real estate should be transferred, after her death, to his children named; that the income should be used to pay off the mortgages; that the property should be sold, the legacies paid, and distribution made.
The petition states a cause of action under the statute.
The application for rehearing will be denied.
Application denied.
HAMILTON, P.J., and BUCHWALTER, J., concur in denying the application for rehearing. *Page 208