conveyed to her "as hereinafter provided." By Item 11 it was provided that the conveyance to her was to be made upon her arrival at the age of twenty years; and by Item 11 that conveyance was to be made "in accordance with the provisions of my will aforesaid." In the opinion of the court the ordinary co struction of that language in Item 11, is that it refers to the language in Item 7, and the conveyance referred to in Item 7 is that provided for in Item 11; and it would not be possible for the conveyance provided in Item 11 to transfer the estate devised in Item 7 other than by giving to the daughter an absolute fee simple estate. A conveyance by the trustee to the daughter of a defeasible fee simple estate would not satisfy the terms of Item 7. Furthermore, it appears by the terms of Item 11 that the testator provided for the estate to be held in trust until the happening of contingencies. If the daughter lived te be twenty years of age the trust estate was to terminate then and a conveyance made to her. If she did not live to be twenty years of age and died before that time without issue her surviving, the trust was to continue during the lifetime of the testator's wife, and upon her death the trustee was to make the conveyance to those then entitled in fee simple.

If the construction urged by the defendants was adopted the court would be required to say that the testator provided for the holding of the estate in trust for his widow in the event the daughter died without issue before reaching the age of twenty years, but that if she died without issue after arriving at that age, then there was to be no trust estate in favor of the wife, and that the wife should thereupon enjoy a life estate without the intervention of a trustee.

If there was a reason for creating a trust estate in favor of the wife in the event the daughter died before reaching the age of twenty years, it seems to the court that the same reason would exist in the event the daughter died after arriving at the age of twenty years; and the court can see in this situation confirmation of the construction to which the court is lead by the application of the rules of construction heretofore referred to.

For the foregoing reasons it is the opinion of the court that upon the arrival of the plaintiff at the age of twenty years, an

1921.1

State, ex rel v. Derrer et al.

absolute estate in fee simple vested in her; that the contingency upon which the defendants were to have an estate by way of executory devise can not possibly happen, for the reason that the time within which it was to happen. if at all, has expired, and that therefore the plaintiff is entitled to have her title quieteo against the claims of the defendants.

TEST AS TO Whether five oR MORE ARE EMPLOYED.

Court of Common Pleas of Franklin County.

STATE EX REL, ETC., V. MICHAEL DERRER, ET AL.

Decided, 1919.

Workmen's Compensation-Construction of the Phrase "Five or More" Employees Two Operating a Farm Constitute a Partnership.

1. Where two sons carry on the farm of their father, under an agree ment to pay him one-third of the profits as rent, their relation constitutes a partnership.

2. In order to come within the workmen's compensation law, an employer must have in his service five or more men under a contract for continuous service of a character necessary to the regular conduct of the business; and where only four are employed regularly and a fifth intermittantly a case is not presented under the compensation law.

* Affirmed by the Court of Appeals in an unreported opinion; cause certified by the Court of Appeals to the Supreme Court, which af firmed the judgment of the Court of Appeals, 101 O. S., 498.

KINKEAD, J.

The first question considered is the claim of partnership. The two sons occupied the father's farm in the business of farming and dairying, paying one-third of the profits of the business to their father. The conclusion is that there was a partnership.

The next question is whether defendants had in their service five or more workmen or operatives regularly employed, under any contract of hire.

We formed the opinion at the hearing of the case and upon the evidence that the test of the statute imposing the obligations

State, ex rel, v. Derrer et al.

[Vol. 23 (N.S.)

of the compensation law was that a firm must have in its service five or more workmen or operatives regularly employed under a contract of hire continuously or regularly; that is, the necessities of the business must require five or more men to be regularly and continuously employed and not merely casually employed; that is regularly employed every year for a regular and specific purpose which was an absolute necessary requirement of the business, as distinguished from a casual, unexpected, uncertain employment, or one which was unexpected or only occasional. It must require five men all the time or reg ularly in the necessary conduct of the business.

Only four men were regularly employed throughout the year; part of the time a fifth man was employed; but only for extra or special work at special periods of time; and his employment was casual.

The character of the employment and work rather than the duration of the services constitutes the test of whether the employment is regular or casual.

There must be a uniform practice or rule to employ a mat. for the particular service as a universal essential practice in the conduct of the business, which regular and particular service is uniformly essential in the conduct of the business, and not merely occasional.

At the time of trial of this case it seemed clear to the court that the facts developed by the evidence, and the proper deductions therefrom that this case did not come within the compensation law. On further and maturer consideration of the record and the arguments of counsel we adhere to our conclusions formed at trial, the finding and judgment being that the relator has not made a case.

The finding and judgment is in favor of defendants.

Duration of Estate not a Test as to Right of Partition-But may Determine the Character of Partition to he Decreed.

An owner for life of an undivided interest in real estate may compe! partition, but the decree will be limited to partition of the life estate and can not extend to the entire fee simple title, unless one or more of the owners of the fee join in a prayer for partition of the fee.

John A. Scanlon, for plaintiff.

Burch & Peters, contra.

MATTHEWS, J.

This is an action in partition. The plaintiff alleges that she is the owner of an undivided one-third interest for her life time in the premises described.

The defendants own the entire fee simple title, subject only to the plaintiff's life estate. They have demurred to the plaintiff's petition on the ground that the owner of a life estate in an undivided interest is not entitled to maintain an action in partition.

Section 12026, General Code, provides that,

"Tenants in common and coparceners, of any estate in lands, tenements, etc., may be compelled to make or suffer partition.

It seems to the court clear from this language that if the plaintiff and the defendants are cotenants, and the plaintiff has a present right to possession, right to partition exists. Tabler v. Wiseman, 2 Ohio St., 208, at 211. The statute does not limit the right of partition to tenants in common who own the fee simple titles, nor does it limit it to tenants in common whose estates are of the same duration. The only condition imposed by the statute, as construed in Tabler v. Wiseman, which was

Bachscheider v. Bachscheider et al. [Vol. 23 (N.S.)

approved and followed in Eberle v. Gaier, 89 Ohio St., 118, is, that the plaintiff and defendants shall be cotcnants, and the plaintiff entitled to possession so that the decree might operate upon the present possession.

In Pomeroy's Equity Jurisprudence, Vol. 5, 2 ed., Section 2131, at page 4799, it is said:

"A tenant for life or for years may, either at law or in equity, enforce partition of the particular estate, and in equity may make the owners of the future estate parties, and have such a decree as will fairly adjust all the interests in the estate."

It seems to have been uniformly held that a co-tenant of an estate for years, for life, or of any other estate in lands, might compel partition, and the language of our own statute expressly authorizes it.

A question of somewhat more difficult determination is as to the extent of the title to be partitioned, in the event that the plaintiff owns less than the entire fee simple. The question stated concretely, is, can the plaintiff, owning a life estate in an undivided one-third of the property, compel a partition of the entire fee simple title? Assuming that the plaintiff has a right to compel partition of the estate to the extent that she holds the title in common with the defendants, has she the right to cut the title beyond her own estate and to the limit of the fee simple estate in remainder held by the defendants? It is clear that if an actual partition were made, its effect would be only to give to the plaintiff a life estate in severalty in one-third of the property, and would not affect the title beyond the life. estate. Has she a right to compel a sale of the entire fee simple estate and secure the estimated value of her life estate in an undivided one-third, out of the proceeds of sale?

In the case of Baring v. Nash, 1 Vesey and Beames's Reports, 550, the plaintiff alleged in his bill that he was a lessee in possession of an undivided one-tenth part of certain premises for the remainder of a term of five hundred years, and that the defendants were seized in fee simple, or "otherwise well entitled to nine other tenth parts of the same property."