384 Soteldo v. Clement. Then follows the clause to be construed, viz.: "Item 10. I will and bequeath to my son, John B. Clement, in trust and as trustee for the sole use and benefit of my daughter, Mrs. Caroline W. Soteldo, and her children, and for no other purpose, one undivided one-fourth part of said remainder of my said estate. I also order and direct the said John B. Clement as trustee aforesaid, to collect and pay over to my said daughter Caroline W. Soteldo, the income and profits of her said undivided one-fourth part of the said remainder of my said estate hereby devised, and also the income of the special bequest bequeathed to her in item 5 of this, my last will and testament." The executors, of whom the trustee is one, are authorized to sell any part of the real or personal property at discretion. The share of the other daughter is left to her absolutely, without any trustee. The plaintiff is a widow, and has two daughters, both now of age, and both of whom, by answer, join in her prayer to have the will construed and the trust terminated, and their share given to them absolutely. The trustee has duly paid over to the plaintiff the income of the trust fund and has the principal ready to abide by the result of this case, and chiefly desires not to be liable to any possible unborn claimants on the fund. The case comes up on demurrer to the petition. BATES, J. I. In Wild's case, 6 Coke, 17, a devise to B and his children, B being then childless, was held to create an estate tail, secus if he then had children. In the former alternative the intent is to benefit subsequent children, and could only be so effectuated. But, in the latter case, it was said that he and they took jointly, afterborn children being excluded; for they can not take immediately, because not in rerum natura; nor in remainder, because the gift is immediate-at least such was the interpretation at once put in the decision, and it has ever since been the law. We are only concerned with the latter branch of the case, or, as the rule is generally stated, an immediate gift to a class vests at once to those in esse answering the description, and will not open to let in after-born. (a.) Hence an immediate gift to children, or to a person and his children, or his issue, if he has children at the testator's death, vests in those in esse to the exclusion of those born afterwards. This rule applies equally to deeds and to wills, and its universality will appear from the following cases, nearly all of which cite Wild's case. The list, though not exhaustive, except as to recent cases, is made full, because the protection of the trustee requires that each point be perfectly proved. Saunder's note to Heathe v. Heathe, 2 Atk. 121, 122; Davidson v. Dallas, 14 Ves. 575; Scott v. Scott, 15 Simon, 47; Smith v. Ashhurst, 34 Ala. 208; Jones' appeal, 48 Conn. 60; Tharp v. Yarbrough, 79 Ga. 382; Lewis v. Lewis, 62 Ga. 265; Gillespie v. Schuman, 62 Ga. 252; Wood v. McGuire, 15 Ga. 203; Faloon v. Simshauser, 130 Ill. 649; Handberry v. Doolittle, 38 Ill. 202; Biggs v. McCarty, 86 Ind. 352; Powell v. Powell, 5 Bush, 619; Shotts v. Poe, 47 Md. 513; Worcester v. Worcester, 101 Mass. 128; Langmaid v. Hurd, 64 N. H. 526; In re Green, 131 N. Y. 586; Jenkins v. Freyer, 4 Paige, 47; Moore v. Leach, 5 Jones, (N. Ca.) L., 88; Jourdan v. Green, 1 Dev. (N. Ca.) Eq. 270; Simms v. Garrot, 1 Dev. & Bat. 393; Landwehr's Est. 147 Pa. St. 121; Swinton v. Legare, 2 McCord's (S. Ca.) Ch. 440; Cannon v. Apperson, 14 Lea. (Tenn.) 553 4 Allen, 566; Bowditch v. Andrew, 8 Allen, 339; Inches v. Hill, 106 Mass. 575. In Biggs v. Peacock, 22 Ch. D. 204, the testator directed his trustees to sell and hold the proceeds in trust for his widow for life, and after death, for his children. The prayer to divide the property was refused because some of the children resisted it, but Jessel, M. R., and Cotton, L. J., both said that no doubt, if all were of age and sui juris, they could call on the trustee to convey the estate to them. In Huber v. Donohue, 49 N. J., Eq. 125, the devise was in trust to apply rents and profits to support widow and children for ten years, and then sell and divide. The court said that the beneficiaries had the entire interest, subject to the executor's power to sell, which they could defeat by electing to take the land instead of the proceeds, and could sell and pass title, and therefore the court could terminate the trust now. If the children of the plaintiff should die leaving her their heir, or convey to her, her situation would be something like that in Taylor v. Huber, 13 Ohio St. 288, and Culbertson's Appeal, 76 Pa. St. 145. The cestui's interests here are accessible to creditors, and can be sold by themselves. The will neither discloses an object in interposing a trustee between the cestuis and their property, nor a duration of the trust whether forever or for whose life. If the motive was infancy of the children, that has now passed. If it was any incapacity, none was mentioned, and none is disclosed. To end the trust seems like making a new will for the testator. Yet there are many restrictions on property rights, and remote limitations which the law forbids; and though a testator might like to keep his heir in tutelage and his property intact, the policy of the law is to put every one on his own responsibility at twenty-one, to sink or swim, as he may choose to be prudent or improvident. Hence, except in alimentary trusts where maintenance or protection is the defined purpose, it would seem, from the above authorities, that, where the owners of the entire beneficial interest are sui juris, and unite in asking a termination of the trust and an immediate distribution, and no object to be accomplished by continuing it appears, the trustee could end it by a conveyance to the beneficiaries, and the court can, and apparently should, decree its termination. Accordingly, the prayer of the petition must be granted. J. E. Smith, of Warren county, for the trustee. 387 Harner v Street Railway Co. STREET RAILWAYS. [Franklin Common Pleas, June, 1893.] JOSEPH H. HARNER V. COLUMBUS STREET RAILWAY Co. 387 A street railway company having located and constructed its railway under the proper municipal authority, with all the switches or turn-outs which were then deemed necessary by the company, cannot afterwards construct additional switches or extend those already constructed, without first obtaining the written consent of a majority of the property holders, represented by the feet front, of the property abutting on that part of the street where such additional switches or extensions are proposed to be constructed, and obtaining the right to do so, from the proper municipal authority. ABERNATHY, J. This was an action brought by plaintiff for himself and a number of other persons, owners of lots abutting on Oak street in the city of Columbus, to enjoin the defendant, the Columbus Street Railway Company, from constructing a double track on said street between Eighteenth street and Wilson avenue. A temporary restraining order was granted. Upon the hearing of the case on the merits, the evidence in substance showed that a single track railway was constructed on Oak street under an ordinance passed by the city council in 1875, which authorizes the construction of a street railway on this street, without any express authority as to switches or turn-outs; that such switches were then constructed by the company at various points on the line of its railway as it deemed necessary or convenient for its operation. The right as then granted contemplated the use of horses or mules in running its cars, and was so used. In 1889 the city council, by ordinance, granted the right to the defendant company to use electricity in running its cars, and the company constructed the necessary appliances for running its cars by this method. It was claimed by the defendant that this change in the method of propelling its cars, together with the large increase of public travel on this street, and in order to afford better facilities to the public by making greater speed, more frequent trips, and less delays, it became and was necessary to extend some of the switches on this line. At the time the restraining order was granted, the company had commenced the extension of one switch, which it intended to extend about one hundred feet, and also to connect two other switches which were about eight hundred feet apart. It claims the right to do so without obtaining the consent of abutting lot owners, or the consent of the city authorities. The plaintiff and the other persons in whose behalf this suit was brought, are owners of property whose lots abut on Oak street, and in front of which the above extensions were threatened to be made. The case was submitted on the single question as to the right of the company to make said extensions, without reference to the further question as to the safety or practicability of these extensions so far as the abutting lot owners were concerned. The question presented is whether or not a street railway company, under the authority granted to construct a street railway, and having exercised that right by laying its track, and constructing such switches or turn-outs as were then deemed sufficient for its operation, can afterward extend and enlarge these switches without further municipal authority, and without obtaining the consent of abutting lot owners who may be affected by the alteration. We are clearly of the opinion that it can not, and that neither the consent of the city authorities to change its motive power from horses to electricity, nor the assumed demand of the public for increased facilities for travel, furnishes any ground for the exercise of such right. It is a familiar principle in the law of corporations such as railway companies-that they acquire only such powers as are expressly granted, or are clearly implied from the nature of the grant. Straus v. Ins. Co., 5 Ohio St. 59; 1 Ohio St. 37; 10 Ohio, 108. And these grants of power, being in derogation of common right, are to be strictly construed; especially where the right claimed is a delegation of the power of eminent domain. Currier v. Marietta Ry. Co., II Ohio St. 228; Toledo, etc. R. R. v. Daniel, 16 Ohio St. 390; R. R. Co. v. Naylor, 2 Ohio St., 235; Moorehead v. R. R. Co., 17 Ohio, 340, 353: Harbeck v. Toledo, etc., II Ohio St. 219; 20 Ohio St. 496; 1 Redfield on Railways, p. 250. And doubtful grants are to be construed most favorably towards those who seek to defend their property from invasion. 1 Redfield, 251. The statute prescribes the requirements whereby street railway companies may acquire the right of eminent domain, and these requirements must be strictly pursued. Roberts v. Easton, 19 Ohio St. 78; 10 Ohio St., 560; Harbeck v. Toledo, 11 Ohio St., 219; Dyckman v. Mayor, etc., I Sel. 439. While the precise question presented in this case has not been expressly passed upon by the Supreme Court of this state, we think the principle involved has been settled by numerous decisions in their application of the rules of construction to other railroad corporations. Railway Co. v. Lawrence, 38 Ohio St. 41, 45; Street Ry. v. Cumminsville, 14 Ohio St. 523; R. R. Co. v. Naylor, 2 Ohio St. 236; Roberts v. Eaton, 19 Ohio St. 78; Moorehead v. R. R. Co., 17 Ohio, 340; Atkinson v. R. R. Co., 15 Ohio St. 21; Warren v. R. R. Co., 39 Ohio St. 70. See also Com. R. R. Co. 27 Peen. St. 339; Booth on Street Railways par. 56, 95; 1 Redfield on Railways, page 250, 253 and note 17. It was contended by counsel for defendant that the right to make these extensions was incident to the grant conferred to construct its track in the first instance, and the implied authority to construct such switches or side-tracks as were necessary or convenient for the proper exercise of its franchise, and especially so, under its right to operate its cars by electricity, as subsequently conferred by the city council, inasmuch as the company had the right to have constructed such switches as it now proposes to construct, in the first instance if they had been deemed necessary and convenient. Whether this is so or not, we hold that it was within the contemplation of both the city and the company under the franchise then conferred, that the company should construct its railway and switches in the manner in which they were then constructed, and having done so, it cannot make a substantial change in their location and construction, by extending its switches several hundred feet without first acquiring a new grant, and obtaining the consent of a majority of the property owners who may be affected by the proposed extension, any more than a railroad company can re-locate its road, after it has once been located and constructed, and for manifest reasons-principal among which is the fact that many per 387 Harner v. Street Railway Co. sons may have purchased lots and built houses, for business or residence, and made improvements with reference to this road as already located and constructed. In such a case we think a remedy by injunction lies, and the prayer of the petition for a perpetual injunction should be granted. Cyrus Huling, for plaintiff. H. J. Booth and James Caren, for defendant. FORFEITURE OF ESTATES. [Hamilton Common Pleas, May, 1893.] WALKER BRANCH V. WESLEYAN CEMETERY DIRECTORS. 398 1. The ceremony of re-entry is not necessary in Ohio to forfeit an estate for breach of condition subsequent. 2. The power to forfeit for a future breach of the condition is not alienable and is gone if the grantor attempt to convey. In 1841, Timothy Kirby, by deed, granted to the trustees of a Methodist church three-quarters of an acre out of a larger tract in Cumminsville, on which to build their church, with the following clause of defeasance: "Should the said land cease to be occupied for church purposes, and as a place of divine worship, the grant will cease and determine." The habendum clause contains no such condition. No right of re-entry is in terms reserved to his heirs, or even to himself. Afterwards, in 1846, Timothy Kirby sold and conveyed the entire tract to the defendants, subject to the prior conveyance to the church. In 1888, the church burned down, and a new lot was purchased elsewhere for the new edifice, and the church obtained an ex parte decree of the court authorizing it to sell the old lot, which was accordingly sold to the plaintiff. To this decree the defendants were not parties. The plaintiff wants his title quieted, and the defendants want a prior alleged oral contract of purchase enforced, or claim the lot by virtue of the clause of forfeiture. The question arises on demurrer to the answer and cross-petition. BATES, J. I. (a.) Mere non-performance or breach of a condition subsequent never ipso facto defeated the estate granted or produced a reverter of the title, for as performance could be waived by the grantor, the condition was deemed dispensed with, and the estate ran on in full force, unless the proper steps were taken to consummate the forfeiture and re-vest the title. Now, as by the common law livery of seizin was essential to pass a free-hold, a forfeiture and re-vesting of the title could only be accomplished by a re-entry to defeat the prior livery made on its original creation, this being a resumption of the seizin parted with by the feodal investiture; and then, only, would an ejectment or writ of entry or action of disseizin lie for a re-possession in fact. Or, as Coke puts it, when any man will take advantage of a condition, if he may, [can] enter, he must |