Taylor v. Foster's Administrator , 17 Ohio St. (N.S.) 166 ( 1867 )

Brinkerhoff, J.

We are of opinion that, by the will of Christena Reed, there was vested in each of her devisees, in common with the others, an estate in fee simple, but determinable, nevertheless, as to each of them, on the contingency of his or her dying without issue; that on the happening of such contingency, the estate of the decedent or decedents passed to the survivor or survivors by way of executory devise; and that on the death without issue of either of the devisees, who under the provisions of the will had succeeeed to a portion of the share of a prior decedent, the portion or portions to which he had thus succeeded was subject to the same contingency as his original share, and passed to the survivor or survivors in like manner.

It follows, that at the time of the execution of the mortgage to the plaintiff by Samuel Crosby Foster, the only absolutely certain estate held by the mortgagor was an estate for his own life; he could convey no greater estate than he had; and he dying without issue, his contingent estate passed over to his sister, the defendant, she being then the sole surviving devisee.

Demurrer to answer overruled, and cause remanded.

Day, C. J., and White, Welch, and Scott, J.T., concurred.