
    Jones v. Lloyd.
    1. Where a widow elects not to take under the will of her deceased husband, she can take nothing in virtue of the bequests made to her by the will, in lieu of dower.
    
      2. While a will should be read and construed by the light of the circumstances under which it was executed, yet such circumstances can affect its construction only when it appears that they were known to the testator at the time of its execution.
    3. The term heirs, when used in a will, is flexible, and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will.
    4. Where a testator makes a provision for his wife, in lieu of dower, and directs that, in the event of her claiming dower, the balance of certain-personal property bequeathed for her support “shall be shared equally among my heirs,” the words “ my heirs," will be construed as meaning my next of kin, or, my heirs according to the statute of distribution, exclusive of my wife; though his wife, in case of intestacy, would, under the statute, have taken all such personal property.
    5. Hence, where the brothers and sisters of the testator are his next of kin, and are recognized as such by the statute of descent and distribution, after the wife, they are to be regarded as the legatees under such will-—in case the widow declines to accept its provisions.
    Error to the District Court of Gallia county.
    David E. Jones, beiug seized of certain non-ancestral* real estate, by the first item of his will devised the same* to his wife, Rachel, for life, together with the stock, household goods, furniture, provisions, and other goods and chattels which might be thereon at the time of his decease;, but on condition : First. That she would reside on the property and keep it in repair; and, Second. That she would remain his widow; otherwise, she was to receive but her dower in said property. The next item in the will was as-follows: “ I do hereby bequeath to my said wife all my personal property, amounting to two thousand dollars ($2,000), the principal of which is to be kept in the hands of my executor of my personal property, the interest to go-for her support; but if, at any time, she desires her dower-set off, then the balance is to be shared equally among my heirs.”
    The testator had no children or lineal descendants at the time of making his will, but had several brothers and sisters living, and his wife was in a state of pregnancy. The ■will was made October 14, 1871; testator died November 10, 1871; and, on the twenty-fifth of the same month, the will was duly probated. On the fifteenth day of December, in the same year, the testator’s widow was delivered of a still-born child. She has never elected to take under the will of her late husband, and declines to do so. She demands of the administrator with the will annexed, of her husband’s estate, the proceeds of all the personal properry thereof subject to distribution ; while the brothers and sisters of the testator claim that she is only entitled to a widow’s distributive share of one-third, and that they are entitled to the residue, as donees under the will.
    Iu order to obtain a construction of the will which ■ should determine the conflicting claims, the administrator filed a petition in the Court of Common Pleas of Gallia ■ county, making the widow, and the brothers and sisters of the testator, parties. The questions made were in regard to the effect of the second item of the will, which relates only to the personal property.
    The case coming into the district court by appeal, the foregoing facts, in so far as they are not shown by the pleadings, were found by the court from the evidence. And from’these facts, that court held and adjudged that, -“Rachel Jones, as wife and relict of the testator, is the ■person, who, by the terms of said will, is .entitled to take, receive and have, the personal property bequeathed and given under the second item or clause of said last will and testament of said David E. Jones ; ” and directed the administrator to pay over to her the balance or residue referred to in said second item or clause.
    The brothers and sisters of testator are here seeking, by petition in error, to reverse the judgment or decree, on the ground that, upon the facts found and shown by the record, the judgment of the court should have been in their favor.
    
      Simeon Nash, for defendant in error:
    David E. Jones made his will October 14, 1871, which is set out in the petition. He died about November 10, 1871, leaving Rachel Jones, his widow, enciente of a child, which was afterward born dead and not alive. The will was probated, but the widow refused or did not elect to take under said will.
    These facts are found stated in the petition and finding -of the court. The court decides that the widow took the «estate under the will, though she had not elected according -to law to take under the same.
    Under this state of facts, we claim that the widow was entitled only to such share as she would have been entitled to in case David E. Jones had died leaving children ; and that his brother and sister were entitled to the share of the •estate which the children would have taken, if he had died intestate leaving children.
    The court decides she took the whole estate under the will, though she had not elected to take under it.
    The statute in force at the date of 1871, when Jones ■died, is found in 2 S. & C. 1623, § 44. It is as follows: “If the widow fail to make such election, she shall retain her dower and such share of the personal estate of her husband as she would be entitled to by law in case her husband had died intestate, leaving children.”
    The first error committed by the court was in ruling that the widow took this estate, although she had not made an •election to take under the will; having failed to make her •election to take under the will, she was entitled to only what she would have been entitled if her husband had died intestate, leaving children — one-half of first $400, and one-third of the balance. And, so far as the real estate is con•cerned, she was only entitled to her dower and no more, and he having died leaving no living child, the balance of the estate went by descent to his brothers and sisters, the persons making this application.
    The prior statute did not contain the words “leaving ■children,” and hence widows declined to take under a will, and claimed the whole estate under statute of descents. And this amendment was, added to prevent such an outrage, which was substantially denying to a man without children to make a will. No one supposed after that that any such decision asís here made could be made again, and no one ever dreamed of giving the widow what the will gave her, where she failed to elect to take under it.
    
      
      Samuel A. Nash, for defendant in error:
    Without a will, this estate, real and personal, no child having been bora alive, would have gone to the widow as the heir at law of her deceased husband. The “ husband or wife, relict of such intestate,” take the estate by force •of the statute of descent, the same as the children, the-brothers and sisters, father or mother, etc. S. & S. 305, 307. Heirship in Ohio is settled by positive statute. The-person upon whom the statute casts the estate is the heir at law. The “next of kin” are not mentioned until after all the enumerated persons have been exhausted. Subdiv. 6 of see. 2.
    That the “husband or wife, relict of such intestate,” take as “heirs,” and by the law of the state come tinder the definition of “heirs” as properly and legally as children, or any other person upon whom the estate is cast, has been the language and decisions of our courts ever since the legislation existed in the State. Ferguson v. Stuart’s Ex’r, 14 Ohio, 140; Brower v. Hunt, 18 Ohio St. 312; Crane v. Doty, 1 Ohio St. 282; Davis v. Boggs, 20 Ib. 559; 28 Ib. 191.
    When a testator dies, seized and possessed of an estate-that “ came not by descent, devise, or deed of gift,” and there be no children or their legal representatives, but a-wife or husband survives, and devises and bequeaths his-entire estate to his “ heirs,” such surviving husband or wife-will take the estate under the will as the proper person and legatee described in the will. Ferguson v. Stuart’s Ex’r, 14 Ohio, 140; Townsend v. Townsend, 25 Ohio St. 448; Steel v. Kurtz, 28 Ohio St. 191.
    In the construction of a will, the heir is not to be disinherited, if such a construction can be avoided. “ The heir is not to be disinherited unless by express words, or by necessary implication,-and that implication has been defined to be such a strong probability that an intention to the contrary can not be supposed.” 1 Dawson on Wills,. 465; Crane v. Doty, 1 Ohio St. 282; Jarman on Wills, 315; 37 Penn. St. 9, 23.
    
      There is absolutely no word in this will from which an implication can be raised that any person, other than his heir, as fixed by law, was intended by the testator.
    The question, then, is not so much that the testator did not mean his wife, as who did he intend ?
    The testator bxecuted his will, and died, knowing that a child was to be born to him, and if born alive, would be his heir. It can not be supposed that he intended to disinherit his child and heir. But if he intended these plaintiff's in error, his brothers and sisters, then he did intend to disinherit his child. No person or persons are mentioned, or remotely alluded to, in the will but his wife. The child, born alive, 'would have taken under the will (sec. 41, 2 S. & C. 1623); being born dead, the widow must take as next in succession.
    It is objected that the widow can not take under the will, because she did not elect so to do, as provided by statute.
    Such election was not necessary. A widow refusing or neglecting to take under her husband’s will is entitled to the same proportion of his personal estate as if he had died intestate, which, if he leave no children, is the whole. 2 lb. 444.
    Mrs. Jones is not claiming as widow, but as heir. There is no provision that the heir must elect, and the failure of the widow to elect does not affect her rights as heir. The statute applies solely to the widow. Carder v. Commissioners, 16 Ohio St. 366.
   Scott, J.

In construing the will before us, it is our duty to give effect to the intention of the testator when clearly ascertained from its language, if such intention be consistent with law and public policy. Looking to the general scheme of disposition disclosed by the will, we think it apparent that the purpose and intention of the testator was to make what he judged to be a suitable provision for the support of his wife during her life; but subject to eertain conditions, to which, if she should decline to accede, and should prefer to claim her statutory rights of dower, etc., then she should be remitted to those statutory rights alone, and should take nothing by his will. In carrying out this purpose, by the first item of his will he devises all the real estate therein mentioned to her for life, but if she declines this gift clogged with the conditions annexed thereto, then he says “ she is to receive but her dower in said property.”

Coming then to the second item of the will, which is the one here in controversy, we find that it relates to all his personal property, other than the household furniture, goods, etc., embraced in the first item, and that it consisted probably of money, notes, bonds, etc., of fixed and readily ascertainable values, for he says it amounts to two thousand dollars. He directs the principal of this sum to be kept in the hands of his executors, the interest arising from it to be applied to his wife’s support; and then adds that “if at any time she desires her dower set off” (that is, if she asserts her statutory right to dower, including the distributive share of this two thousand dollars, awarded to her by the statute), “then the balance is to be shared equally among my heirs.” We think the language leaves no room for doubt that the testator did not regard his wife as his heir, and that he intended aud willed that if his wife chose to assert her right under the statute to the widow’s share of this two thousand dollars, then, after giving her such share, “the balance” (or residue thereof) should be distributed equally among other persons, whom he designates as his heirs. The word “ heirs ” is a flexible one, and when used in a will, should be so construed as to give effect to the manifest intention of the testator. It has often been properly held to mean “ next of kin,” and should be so understood whenever the context so requires. 2 Redfield on Wills, 67. The sense in which the term “ heirs ” is used in a will is always open to inquiry. Bailey v. Patterson, 3 Rich. Eq. Cases, 156; Evans v. Godbold, 6 Ib. 26.

In ascertaining the intention of the testator, no account can be taken of circumstances which clo not appear to have been known to him when the will was made. Hence, the fact that his wife was pregnant when t'he will was executed, can not affect its construction, unless it appear that this was known to him, or was at least suspected by him at the time. In this case, the fact of such knowledge or suspicion is not alleged in any of the pleadings — not even in the answer of the widow — and is not found by the court below. And the language of the will very strongly negatives the idea of such knowledge or suspicion on his part. The will not only contains no reference to the possible pregnancy' of the wife, which would be singular if the fact were known to, or suspected by, him; but the bequest is, that “ the balance is to be shared equally among my heirs.” This language indicates clearly that the testator supposed he would have not less than two, or if force be given to the word “ among,” then not less than three heirs. Are we to presume from this language, that, without any reference to the subject in the will, the testator not only supposed his wife to be pregnant, but that she would bring forth twins, or triplets ? The mere fact that the widow was, two months thereafter, delivered of a dead child, however premature such delivery may have been will not justify the inference that the testator was aware of the pregnancy when the will was made; especially, when the language of the will indicates the contrary.

But suppose the testator was aware of his wife’s pregnancy, when the will was made; yet, if it clearly appear that he did not regard her as an heir, then, in a bequest to his heirs, she can not be regarded as a legatee. And in ascertaining who are designated by the term “ heirs,” she must be excluded from the number.

■ The testator left four brothers and two sisters surviving at his death, and even if he knew his wife to be pregnant, he could not know that, she would be delivered of a living child. He bequeathed a certain sum “ to be shared equally among his heirs.” Now, if it appear, as we think it does, that his wife was not to be regarded as an heir of his personalty, it makes no difference whether we consider the words my heirs,” by which the legatees are described, as meaning “ my next of kin,” or “ my heirs (according to the statute of distribution), exclusive of my wife.” The bequest is in either case, under the facts of this case, to the testator’s brothers and sisters. Eor the posthumous child not having been born alive, they were his next of kin, and were also his heirs, under the statute of descent and distribution, if his wife is not to be regarded as his heir. We can have no doubt, from the language of the will when applied to the facts shown by the record, that by his “ heirs ” the testator meant his “next of kin,” whether children or brothers and sisters. Rachel Jones, the widow, having elected not to take under the will of her husband, must be remitted to her statutory rights as a widow. The statute in force at the time of her husband’s death gives her dower, and such share of the personal estate of her husband as she would be entitled to by law in case her husband died intestate, leaving children. S. & C. 1624, § 44. A prior statute provides that if an intestate shall have left a child, the widow shall be entitled, upon distribution, to one-half of any sum not exceeding four dollars, and to one-third of the residue of the personal estate subject to distribution. S. & C. 601, § 175.'

The judgment of the district court must be reversed, and proceeding to render such judgment as that court should have rendered, we direct and adjudge that of the moneys coming into the hands of the administrator, under the second item of testator’s will, and remaining after payment of debts, and costs of administration, distribution to be made as follows, to wit: First. The costs of this suit, including the costs of this proceeding in error, shall be fully paid. Second. That of the remainder of said fund, one-half of the first four hundred dollars, together with one-third of the residue, shall be paid to the said widow, Rachel Jones, and that the residue of said fund be equally distributed among the brothers and sisters of said testator, share and share alike.

In regard to the property devised by the first item of the will, which, as we understand it, is not here drawn in question, and was not passed upon by the court below, we express no opinion.

Johnson, C. J.,

dissented from the fourth and fifth points in the syllabus, and from the judgment.  