Ohio Finance Co. v. Middleton. [14 Ohio necessarily contemplates that repairs will be made to keep the vessel or carriage in usable condition. Ruppert v. Zang, 73 N. J. Law, 216, is a leading case, the syllabus of which is as follows: "Where a mortgagee permits the mortgagor of chattels to retain and use them, authority is impliedly conferred upon the mortgagor to have necessary repairs done upon the chattels, and the lien of an artificer for repairs done under employment by the mortgagor will have priority over the lien of the mortgage, although the latter be duly recorded." The opinion is by Pitney, J., who fully reviews the authorities. The case of Drummond Carriage Co. v. Mills, 54 Neb., 417, holds upon the doctrine of implied consent of the mortgagee, that a lien for repairs upon a carriage is superior to a chattel mortgage. The case of Rehm v. Viall, 185 Ill. App., 425, states the rule as follows: "While a mortgagor cannot by contract create a lien in behalf of a mechanic so as to give it priority over a previously recorded chattel mortgage, the mortgagee's authority for the creation of such a lien may be implied where the property is to be retained and used by the mortgagor, and is of such character as to involve the occasion for the making of ordinary repairs thereto as a reasonable incident to its reasonable and customary use." See also Broom & Son v. Dale & Sons, 109 Miss., 52; Reeves & Co. v. Russel, 28 N. D., 265; Watts, Trustee, v. Sweeney, 127 Ind., 116; Hammond v. Danielson, 126 Mass., 294; Lynde v. Parker, 155 Mass., 481, and Scott v. Delahunt, 65 N. Y., 128. App.] Ohio Finance Co. v. Middleton. The case of Howes v. Newcomb, 146 Mass., 76, recognizes the doctrine of implied consent and merely holds that that case did not fall within the doctrine. The prior right of a lienholder against a true owner under the doctrine of implied consent is discussed in 3 Ruling Case Law, pages 133 and 134. In this connection it is said: "It must not, however, be inferred that the consent of the owner of a bailment for skill or labor to be employed on an article must in all cases be given with such formalities or in such a manner as would create a personal liability on his part to pay the charges. The property being improved and enhanced in value by the workman's labor, authority to have it done on the footing of a workman's lien will be implied from circumstances which would not raise an implication of a contract to pay the charges to be enforced by a suit.' Again the author says, at page 134, Section 56: "Thus where property which is liable to need repairs is to be retained and used by a mortgagor for a long period of time, it will be presumed to have been the intention of the parties to the mortgage that it is to be kept in repair; and when the property is machinery, or is of such a character that it must be entrusted to a mechanic or machinist to make such repairs, the mortgagor in possession will be constituted the agent of the mortgagee to procure the repairs to be made; and as such necessary repairs are for the betterment of the property, and increase its value to the gain of the mortgagee, the common-law lien in favor of the bailee for the value [14 Ohio Ohio Finance Co. v. Middleton. of the repairs is paramount and superior to the lien of the mortgagee." The subject of this action was an automobile touring car, and the mortgagor was to have the continued possession and use of the car during the periods prescribed for the payment of the various notes. Clearly it must have been contemplated by both the mortgagor and mortagee that the automobile would require repairs from skilled mechanics within this extended period over which the mortgagor was given the right of possession and control. We think the case fully justifies applying the doctrine of implied consent in favor of the lienholder for repairs and against the chattel mortgages. It may be added that in the construction and application of the common-law doctrine of liens the opinion of O'Hara, J., in Palace Hotel Co. v. Medart, 87 Ohio St., 130, holding that statutes in derogation of the common law should be strictly construed, is applicable here as to a construction of the mechanics' lien statute. The doctrine of implied consent of the mortgagor does not, however, impinge upon or conflict with the chattel mortgage lien statute. The lienor holds the lien under a contract of the mortgagor with the implied consent of the mortgagee. Scott v. Delahunt, supra. Counsel for plaintiff in error have cited the unreported case of Keller v. Evans, decided by the court of appeals of Muskingum county. That case is distinguishable because the party asserting the claim was not the mechanic or artisan, but a subsequent purchaser from the mortgagor. That court rightly held that such purchaser was bound by the doctrine of constructive notice. App.] Edwards et al. v. Edwards, etc. The case of Bankers Commercial Securities Co. v. Coffman, 22 N. P., N. S., 193, involves a somewhat similar point and is in harmony with the views entertained by this court. We reach the conclusion that Varner is entitled to a common-law lien for his repairs and that the same under the circumstances of this case is entitled to priority over the chattel mortgages. Judgment affirmed. FERNEDING and KUNKLE, JJ., concur. EDWARDS ET AL. v. EDWARDS, BY ETC. Wills - Construction-Devise to son "and his heirs of nearest kin” - Estate in fee tail created. The phrase "To our son David and his heirs of nearest kin,” used in a will, with nothing else manifesting a different intention, devises an estate in fee tail in the son David. (Decided March 18, 1921.) APPEAL: Court of Appeals for Logan county. Messrs. Howenstine & Huston, for plaintiffs. HUGHES, J. We are called upon to construe the item in the will of James H. Edwards, deceased, which reads as follows: "In the name of the Benevolent Father of all, I, James H. Edwards, of county of Logan and State Edwards et al. v. Edwards, etc. [14 Ohio of Ohio, being of lawful age and of sound mind hereby give and bequeath to my beloved wife, Elizabeth A. Edwards, all of my property both personal and real, of which I may be seized at my death, to have and to hold to her only proper use during her natural life and whatever may be left from her support and care during her life, last illness and funeral expenses shall go to our son David U. Edwards and his heirs of nearest kin." The will in question was executed during the month of June, 1901, at which time his wife Elizabeth was living, as was his son David, who, at the time, was married and had one child. The wife Elizabeth died in 1906. The testator died in November, 1918, and left surviving him as his only heir his son David, who at that time had three children. There is nothing in the will nor in the agreed statement of facts to aid the court in interpreting the meaning of the expression used in this item, and we are therefore called upon to construe the item as it stands, without any other language or fact given to indicate the intention of the testator. There are some expressions that have received judicial interpretation and have a fixed meaning under the law of wills. There can be no doubt, if a testator uses the expression "I give to my son and his heirs," that he devises a fee simple estate to his son. It is also determined by our supreme court in Godfrey v. Epple, 100 Ohio St., 447, that when a testator uses the expression "to my nearest kin" he means thereby that the estate shall pass to those who would have inherited under the statutes of descent |