Estates, Wills & Properties
James R. Howe
June 10, 1998
First let it be said that it is not my intention to write a paper on Real Estate Law. However, we must come to understand some very basic terms if we are to correctly interpret and understand the estates, wills, and property of the Cuyahoga Falls, Ohio Howe family: to wit, Lucius Howe (died 1886), his daughter Ellen Callahan (died 1891), and his two sons Miner H. Howe (died 1906) and Orville Howe (died 1913).
The following excerpts are taken from “OHIO REAL ESTATE LAW”, Fourth Edition, by Irvin & Irvin, Attorneys at Law, 1988.
Land (real property) may be owned several ways. The best and strongest title to land is “FEE SIMPLE ABSOLUTE” or more commonly called “fee”. Land can also be co-owned. The most common and easiest way to co-own land is by Tenancy in Common.
Tenancy in Common is a form of co-ownership in land where each of the owners hold a fractional interest defined by the deed. For example, four people can co-own property with each holding and undivided 1/4 interest in common. In the case of a husband and wife it is usually defined as each having an undivided 1/2 interest in the realty.
Another way to own land is by “Life Estate”.
“The conventional life estate is to some extent a fee simple absolute ownership of the land limited by the duration of a persons life. An example by deed is “”To A for his life, remainder to B.”” When A dies the estate goes to B.”
“Upon A’s death, the life estate ends and no matter who is in possession of the land at that time, all the rights in the land pass to B, the remainderman given in the example.”
Also in this law book it talks about things that A can do with the Life Estate and things he cannot do. For example, A could sell his life estate but who would buy it since they would have to give it back to B when A dies. Also A cannot waste the land. For example, if the land had heavy timber A could not lumber it out. Or if the land had sand and gravel A could not strip mine it. Such actions would be viewed as a waste of the estate. The remainderman B could go to court and stop A from wasting the land.
It can be argued that the Trust is a form of co-ownership. The Trustee has “legal title” and the beneficiary has “equitable title”, both to the same property, so co-ownership exist.
The Trust is a way of managing property so that the original owner of the property (called the Trustor) will still be able to exert control over the property, even though the Trustor has given up exclusive possession and use of the property in favor of another, called the beneficiary. This is accomplished by transferring legal title to the property to someone called the “Trustee” with the further limitation that the “trustee” must hold and use the property for the benefit of a certain beneficiary.
The wills that have been discovered to date belong to Lucius Howe, his daughter Ellen J. Callahan, and his son Minor H. Howe. No will has been found as yet for Orville Howe. Of the wills that we have it can only be said that they are hand written copies taken from microfilm, terribly smudged and smeared, making them very difficult to read. Special thanks to brother Don Howe who has diligently transcribed these documents into the ones that follow. My impression is that the transcription done by Don is probably 99% accurate. Some Probate records were recovered by Don Howe. These records are in far worse shape than the wills. The detail that was deciphered will be noted under the observations.
To begin our in depth look at the wills of the Howe Family. Keep your eyes open for words like undivided, interest, common, life estate, remainder, trustee, beneficiary.
As was mentioned in the beginning there has been no will uncovered for Orville Howe. Maybe Orville decided he didn’t need a will because he did not own anything. Other than the $5000 from his brother Minor everything was a Life Estate and he new it would all go to his children when he died.
The probate record for Orville Howe makes no mention of Thomas F. Walsh. The deputy clerk apparently handled the accounting and was bonded for $3000.00 to do so. Personal property was listed as none and real estate was listed as $1500.00. Debts totaled $330.20 and were paid by Orville’s heirs. There was a $200.00 asset that was equally distributed to the 7 heirs. After the $12.00 court fee was paid each received $26.85. The names were Mattie Burnell of Cuyahoga Falls, Mary Milwood of Shalersville, Ida Edgar of Copley, Charles Howe of Boston, Ohio, Jennie Edgar of Bath, and Minor Howe.
Summarizing the life estates of Orville Howe:
a) the 91 acre farm
b) Lots 1 & 2 of Block E known as the B….. property on Portage and Third St.
c) Lot 18 of block G on Stow.
d) Lots 23 and 25 of block H on Stow.
What can be said of all this. It is my opinion that Lucius Howe was no Fool and having acquired some degree of wealth wanted to be sure that his grandchildren would eventually own it. He then deliberately creates a “LIFE ESTATE” to Orville for the farm and gives the “FEE” to all of Orville’s children. Then, although the language is not as precise he creates a “LIFE ESTATE” for Ellen in lots 14 &15 on Stow and gives the “FEE” to Ellen’s children.
Ellen does the same thing for her brother and creates a life estate in several pieces of property some of which we can identify in the map of 1891. The properties are to pass to Orville’s children when he dies.
I find it interesting that she creates a trust for her son George and includes in that trust lots 14 and 15 which according to the will of Lucius Howe was to pass to George on her death. I don’t know if it was legal or not but it seems to go against the definitions given above. Also should George die without children then the property is to pass to Orville’s children. Of interest is that the map of 1891 shows the 91 acre farm to be in Lucius Howe’s name even though he died in 1886, 5 years! The same map shows Ellen Callahan as owner of lots 14 &15 even though she only had a life estate. Strange, Very strange.
So did all this property described above as “LIFE ESTATES” for Orville Howe pass to his children? If this was the case then what happened to the Farm? According to the story that was told by Aunt Ruth, Orville lost the farm in a horse race to a guy named Walsh. But we see from all the above that even if Orville was so stupid as to Bet The Farm, no pun intended, Walsh could only keep it while Orville lived. Of course the children would have to understand their rights and lay claim to the land.
We do know of at least one piece of property that was owned by one of Orville’s children. Minor Howe, our grandfather, lived and owned the house on lot 25 on Stow street, known to us as Aunt Ruth’s house (329 Stow Ave). It is entirely possible that Orville built this house and lived in it himself. Cousin Helen, Aunt Ruth’s daughter, told me that Orville built several houses in the Falls. According to Mrs. Dorothy Howe, Aunt Ruth and her husband Butch Grant, bought the house for back taxes when Grandpa Minor Howe was on the verge of losing it. Minor then lived with them for a while after that.
But what about all the rest? Did the children actually get the land and subsequently sell it. We can only guess until we dig up the deeds and the tax maps to trace ownership. Let us not ignore the fact that the abstracts of the wills and the wills themselves, if they were completely readable, would mention a “guy named Walsh.” Try Thomas F. Walsh witness to Lucius Howe’s will and executor of Ellen Callahans will, and along with Minor H. Howe the Trustee for Ellen’s son George for his natural life for lots 14 and 15. These appear to be the same lots that Lucius gave to Ellen for her natural life and gave the fee to her children. Ellen apparently did not understand that George would hold the fee when she died. Now when Minor Howe died guess who was in charge?
Did Thomas F. Walsh end up owning the farm? Did Thomas Walsh end up with the Homestead that belonged to George Callahan? What about the will of Minor H. Howe? Is that really his signature? We need to find out about George Callahan. Did he ever marry and have children? We need to find the deeds or the Maps that will show transfer of ownership of the properties described above. We need to find some document with Minor H. Howe’s real signature. Finally we need to learn a little bit more about Thomas Walsh. The wills and probate records of both Lucius and Ellen show that they had complete confidence and trust in Thomas F. Walsh where as Minor and Orville don’t mention him.