
    CONSTRUCTION OF WILLS.
    [Common Pleas Court of Greene County.]
    Eugene C. Porterfield, Administrator, v. Eugene Porterfield et al.
    Decided, February 4, 1907.
    
      Wilts — Erasures with Into — Words “or Other Relative” Refer to Those Related by Blood and not by Marriage — Statute of Wills — Saving Clause — Nephews and Nieces as a Glass.
    
    1. A clause in a will can not be revolted by the testatrix drawing ink lines through the words. The erasure will be disregarded and such clause will be regarded as a valid pait of the will.
    2. Under the saving clause of Section 5971, to prevent the bequest from lapsing, the legatee included within the phrase “or other relative” must be related by blood to the testator, and not by marriage.
    3. The provision of the statute of wills, Section 5971, providing against the failure of a devise, applies to nephews and nieces as a “class” as well as to children as a “class.”
   Kyle, J.

This is an action to construe a will. Mrs. M. B. Conover, the testatrix, among other bequests, devised to Lucy Flint, to “brother Morgan’s wife” and to Willie Brown, $500 each, with a residuary clause that “any money left divide equally between my* nephews and nieces.” The begraest to Willie Brown or heirs of $500 was crossed out. Below the will were two endorsements signed by the testatrix. The first one “Since Aunt Mary Morgan has died, her $500 divide between my nephews and nieces.” The same statement follows with reference to the bequest to Lucy Flint.

The evidence shows that “brother Morgan’s wife” and “Aunt Mary Morgan” are the same person, and was Mary Morgan Brown, wife of Morgan Brown, a brother of the testatrix. Mary Morgan Brown died before the testatrix, leaving two heirs, Nellie B. Lain and William Brown. Lucy Flint died before the testatrix, leaving Weston B. Flint her sole heir.

The first question that is presented is whether the erasure of the bequest to “Willie Brown” upon the face of the will or the two statements below directing a different distribution of each bequest to the two persons named in the will by reason of their death, and signed by the testatrix affects the provisions of the will, or works a revocation of all or any part.

The attempted erasure of the clause in the will is to be disregarded, and the erased clause shall be regarded as a valid part of the will and the bequest go to the person as •originally written in the will. Griffin et al v. Brooks, Exer., et al, 48 O. S., 211.

The two clauses directing a different distribution of the two bequests are not codicils, as they are not witnessed as provided by law, they can not work a revocation for that is not one of the ways provided in Section 5953, and should be disregarded. Does the legacy to Mary Morgan Brown lapse under Section 5971? She was a sister-in-law of the testatrix. The question to be determined is, does she come within the meaning of Section 5971, under the saving clause, so that her issue could take the legacy? This depends upon what construction is given the words in that section of “or other relative.” If the testatrix leaves a legacy to a “child or other relative” and the legatee dies before the testatrix the legacy is saved to the issue of such persons. But must the “other relative,” the legatee named, be of the blood of the testatrix? If so then as Mrs. Brown, the sister-in-law, was a relative by marriage only, that is a relative by affinity, she does not come within the terms of this statute. This precise question has not been passed upon in any adjxidieated case in this state. The children of Mary Brown in this case are nephews by blood of the ancestor, but if the children of Mary Brown were by a husband other than the brother of the testatrix, sirch children would not be of the blood of the testatrix. In that case the property would be diverted from the blood of the ancestor.

The general policy of the law in providing for a disposition ü property is to keep it within the blood of the ancestor. If íe language of the statute “child or other relative” be given natural construction such language would be held to mean the term “or other relative” applies only to persons of same kind of relationship to the testatrix as is sustained ‘child,” that is, by blood.

O. B. Kriekenberger, for plaintiff.

Charles Darlinglon, for Weston B. Flint,

The fact that the children of Mary Brown in this instance are related by blood to the testatrix could not enlarge the meaning of the term, "or other relative” in the connection in which it is used as applied to the legatee. It is the deceased legatee that must sustain a bl'ood relationship to the testatrix in order to come within the meaning of the clause, "or other relative” in Section 5971. Mary Morgan Brown being a sister-in-law to the testatrix does not.come within the saving clause, "or other relative,” and her heirs are barred and the legacy to her lapses.

As Lucy Flint was a niece by blood to the testatrix her legacy will go to Weston B. Flint, her sole heir, under Section 5971, notwithstanding the statement signed at the end of the will.

Another question for consideration is how the parties take under the residuary clause, "any money left, ‘divide equally between my nephews and nieces.” Under Wooley et al v. Paxson et al, 46 O. S., 307, it has been held that the provisions of the statute of wills providing against the failure of the devise to a child or other relative of the testator by the death of the devisee in the life of the testator (Section 5977, Revised Statutes), applies to the devise to "children” as a class.

I can see no reason why the principle announced worrld not be the same if applied to nephews and nieces as a" class ’ ’ as well as to children as a "class.” It is 'true that they are more remote from the testator, yet that would not affect the application of the same principles. It follows that although Lucy Flint died before the testatrix her issue takes the share of the residuum she would have taken had she survived the testatrix.

An order may be taken accordingly.  