
    CONSTRUCTION OF WILL.
    [Trumbull (7th) Circuit Court,
    October Term, 1903.]
    Laubie, Cook and Burrows; JJ.
    C. W. Owsley v. Thomas Price et al.
    Election or Widow to Take Under Will or Her Husband.
    Testator at the time of the execution of his will and at his death, was the owner of the undivided 19-28 of 51% acres of land and his wife was the owner of the other undivided 9-28 thereof, they having obtained title by deed executed to them jointly, the property constituting their homestead. He was also the sole owner of two other small parcels of land. His will provided that his widow should have a life estate in all of his real property, and at her death it was to be sold and the proceeds divided as directed in the will. The widow elected in the probate court to take under the will: Held, that the widow did not, by such election, waive her right to the fee in the 9-28 of the 51% acres; that she had a legal right to devise the same and that such devise would be upheld. Hibbs v. Insurance Co. 40 Ohio St. 543, distinguished.
    Appeal from tbe court of common pleas of Trumbull county.
    W. M. Owsley and T. H. Gillmer, for plaintiff.
    Arrel, McVey & Taylor, W. W. Zimmerman and Smiley & Weiss, for defendants.
   COOK, J.

Tbis is an action for partition of real estate and comes into tbis court on appeal.

Tbe question involved is tbe construction of the will of Thomas Price and tbe effect of an election by Mary L. Price, his widow, in tbe probate court, to take under tbe will.

At tbe time of making tbe will, and also at tbe death of Thomas Price, be and bis wife were the joint owners of 51 y2 acres of land in Trumbull county, be being the owner of 19-28, and she 9-28. These premises were their homestead and they bad jointly occupied it as such for a number of years, it being an ordinary small farm. They obtained title through a joint deed executed to them. Thomas Price at tbe same time was also the sole owner of two small tracts of land, one containing; one acre and the other one-fonrth of an acre. His will provided as< follows:

“Item 3. I give and devise all my real property which I do now' possess or may possess at the time of my death containing at the present; time the homestead of 51% acres, more or less, recorded in TrumbulT county records, Yol. 105, page 36, and Yol. 139, pages 6 and 7; also as-' recorded in county records YoL 142, page 26, containing one acre o£ land; also as recorded in county records Yol. 147, page 336, containing' one-fourth of an acre of land, to my beloved wife, Mary Louise Price, during her natural life, not to be sold nor exchanged by her; then after her death one year, it is my wish that my executor hereinafter named shall cause all of the said property, my real property as above mentioned, also any other that I may possess at the time of my death to be sold as he may see fit, and the proceeds to be by him, my executor, equally divided between the eight following named persons.”

The widow, Mary L. Price, on being cited to appear in the probate court, to elect whether or not she would take under the will, elected in court to take under the will.

The widow, Mary L. Price, after such election made a will by which she devised her 9-28 interest, or undivided part, of said 51% acre tract to Mary Jane Owsley and her husband, C. H. Owsley, as she expressed it in the will “as a reward for kindness and care that they have extended to me in years past, asking them that at my death they will see that I have suitable burial by the side of my deceased husband, Thomas Price. ’ ’

C. H. Owsley succeeded to all the rights of Mary Jane Owsley in said premises under such will, if she had any. The Owsleys were not included in the eight beneficiaries named by Thomas Price in his will.

It is claimed that this case is ruled by Hibbs v. Insurance Co. 40 Ohio St. 543. We do not think so. In that case the provision of the will was “ *1 give and devise to my beloved wife, in lieu of dower, the farm on which we now reside, * * * containing about 200 acres, during her natural life.’ ” Also, the will gave her a large amount of stock on the farm, bank stock, etc., and the clause concluded with the words, “ ‘At the death of my said wife, the real estate aforesaid I give, devise and bequeath to my grandson, William Miller.’ ” Eighty acres of the 200 had come to the wife by descent, was her sole property, and had been so incorporated with the farm for many years as to entirely lose its identity as a separate tract. The widow elected to take under the will and the court held by so doing she relinquished her fee in the eighty aeres under the doctrine as stated in the case, page 55.3, “that if a testator has affected to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit.so, given to him must.make good the testator’s attempted disposition; but, if on the contrary he chooses to enforce his proprietary rights against the testator’s disposition, equity will sequester the property given to him, for the purpose of making satisfaction out of. it to the person whom he has disappointed by the assertion of those rights.”

And, again:

“ ‘It is a well-settled principle of equity, that where a will assumes to give to one of its beneficiaries property belonging to another person, for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision made for him in the will; and that he cannot have both.’ ”

While there is no question but what this is the general doctrine as stated in the authorities, yet, they all agree that the rule is a harsh one, and in Charch v. Charch, 57 Ohio St. 561, 580 [49 N. E. Rep. 408], it is said:

“But it is also well settled that the language of the will expressive of the intent to give another’s property must be unequivocal.”

If the provision in question, taken in connection with the whole will, will reasonably admit a construction not involving a disposition of such property, that construction must prevail. In order to create the necessity for an election, there must appear on the face of the will itself a clear, unmistakable intention on the part of the testator to dispose of property, which is in fact not his own. The language must be so clear as to leave no doubt as to the testator’s design; as in Hibbs v. Insurance Co. supra, where the testator gave to the wife in unequivocal words the whole farm, “the farm on which we now reside,” and which was at his death to go to the grandson. The necessity for an election cannot arise from an uncertain or dubious interpretation of the will.

In Charch v. Charch, supra, the testator held a number of insurance policies upon his,life. Two of them were payable to his wife upon his death, she being named as beneficiary, while several others were payable to him or his estate. The language of the will was, page 571:

“I direct that my executor collect and realize on my life insurance policies, which I hold upon my life, and distribute the proceeds in accordance with the terms of my will and codicil. ’ ’

The will and, codicil provided that the wife was to receive during, her life $100 per month so long as her two daughters remained unmarried, and then $70 per month, and also to have the use of residence free of taxes and assessments during her life, and in addition thereto $1,000 in ■cash upon his decease. The court held that although all the policies of insurance were in the possession of the testator at the time he made the will and up to his death, yet it could not be said that he intended to bequeath the two policies in which his wife was named beneficiary; and although she elected to take under the will in the probate court and persisted in her election, yet the proceeds of .the two policies should go to her.

Judge Spear, in the opinion says, page 577:

“The subject-matter is his policies — my policies, is the phrase. The words following ‘which I hold’ would, in common parlance, signify manual possession, but the expression is subordinate to that which precedes, and taken in connection with it, implies possession of that which was his'. Nor is the result different if a technical legal meaning is given the word ‘hold.’ In deeds it signifies tenure. But tenure cannot exist in favor of one respecting that in which he has no property interest. If the question were as to a devise of land in this form, ‘all my land of which I have possession,’ would any intelligent mind assume that .the will evinced a purpose to convey land of another which might at the time happen to be in the possession of the testator ? Surely not. The canons of construction will not permit a provision clearly disposing only of property in the possession of the testator of which he is the owner to be held to include property in his possession which belongs to another.”

Again, he says, page 580:

“The case at bar is dissimilar from Hibbs v. Insurance Co. 40 Ohio St. 543, relied upon in argument, in this important particular. There the description of the property of the wife was clearly defined, and it was clearly included in the devise; here it is not only not clearly included, but is, as we think, clearly excluded by the terms of the codicil.”

In the case under consideration the property was an undivídéd interest in land. The husband’s possession would also be the wife’s, possession. The provision of the will is:

“I give and bequeath all my real property which I do now possess or may possess at the time of my death, to my beloved wife, Mary Louise Price, during her natural life, not to be'sold nor exchanged by her; then after her death one year, it is my wish that my excutor hereinafter named shall cause all of the said property, my real property as above mentioned, also any other that I may possess at the time of my death, to be sold as be may see ñt, and tbe proceeds to be by bim, my executor, equally divided between tbe eight following named persons.”

Tbe testator, it seems to us, took special pains only to include his own property. The provision is “my real property which I possess or may possess at my death.” Then again his executor is ordered to sell all of the said property, my real property, not his wife’s real property, but his own real property, which he possessed, of which he had the tenure.

In construing wills there is one rule applicable to all wills alike, and that is, that the meaning and intention of the testator is to be ascertained from the language of the will itself, so that but little aid is given in one case by the construction adopted in another.

In order, therefore, to make this ease on all fours with Hibbs v. Insurance Co. supra, it would be necessary to exclude from consideration the words “my real property which I do now possess or may possess at .the time of my death,” and to reject the inference connected therewith from the reference to the recorded deed of the farm in question, which shows that his real property consisted only of an undivided interest therein. Indeed not a shadow of resemblance could be made between that ease and this, were it not for the words “containing at the present time the homestead of 51% acres, more or less.” These words, however, are themselves equivocal, and taken in connection with the other words of the sentence, “I give and devise all my real property which 1 do now possess,” they are made still more equivocal, and the only consistent interpretation that can be put upon them is that the testator meant and intended to say ‘ ‘ contained in the homestead, ’ ’ instead of ‘ ‘ containing’ ’ the homestead. At all events it is impossible to say that the testator clearly intended to devise to his wife her own property— property he did not possess as his own — in using the words of description contained in this item. In one sense he was in possession of his wife’s share of the farm, that is, as tenant in common, but the words “which I do now possess or may possess at the time of my death” do not, and cannot be, held to refer to and include property thus held, because the testator himself limits their application to property owned •solely by himself: “I give and devise all my real property which I do now possess;” and “my executor hereinafter named shall cause all of the said property, my real property above mentioned,” to be sold.

This intent, so unequivocally expressed by the words, to include in the devise only that part of the real property which he himself owned,, should be the controlling factor in the interpretation of this will.

In the case of Melick v. Darling, 11 Ohio 343, the syllabus of the case is:

“To create a ease of election, there must be a plurality of gifts or rights, with an intention, expressed or implied, of the .party who has a right to control one or both, that one should be a substitute for the other.”

It is true that at that time the syllabus was not necessarily the law of the ease, but Wood, J., on page 350 of the opinion in the opening sentence uses the same language.

That was a case in which the testator and the devisee were tenants in common. The language of the will was, page 345, “I also give unto my grandson, Jeremiah Beatty, the southwest quarter of section seven, •township five, range ten.” In the same will provision was made for Abram Darling. The testator and Abram Darling were tenants in common of the southwest quarter of section seven in township ten, devised to Jeremiah Beatty, the patent having been issued to both of them. The court held that it was not the intention of the testator to devise both interests, and that Abram Darling was not required to surrender his moiety in order to retain the property devised and bequeathed to him by the will.

In Rancliffe v. Parkyns, 6 Dow 185, cited in note to Dillon v. Parker, 1 Swanst. 359, 394, Lord Elden said that:

“It is difficult to apply the doctrine of election where the testator has some present interest, in the estate disposed of, though not entirely his own.”

In French v. Davies, 2 Ves. Jr. 578, it is held that before you can prevent the legal right, the intention must be perfectly clear. The intention must be so clear that a judge can say it is impossible the testator could mean the defendant to have both.

Decree for plaintiff, ordering partition of premises as prayed for.,

Laubie, J., concurs;

BURROWS, J.,

dissenting.

I am not able to concur in the conclusion reached by the majority of the court.

If it clearly appears from the will that the testator, Thomas Price, intended and assumed, in the devise of the homestead, to dispose of the= interest of his wife therein, then the petition of plaintiff should be dismissed.

It is not suggested that the election of his widow, Mary L. Price, to take under the will was not duly and understanding^ made or that the-plaintiff stands on any higher or better ground than did Mary L. Price. Hence, the contention is necessarily limited to the question whether, by the terms of this will, Thomas Price made a disposition of the entire homestead consisting of '51% -acres.

It is held by the majority of the court that a doubt may be entertained as to'the meaning of the language: “I give and devise all my real property which I do now possess or may possess at the time of my death, containing at the present time the homestead of 51% acres, more or less, recorded;”'etc., and that" this language is consistent with an intention to devise only a two-thirds undivided interest therein, although the testator was and for many years had been, presumably in possession of the whole as the family homestead.

It must be conceded that apt and unequivocal language is employed to designate and describe the entire homestead lot as included in the devise. ITad -the wife been sole owner of it instead of part owner, no question or doubt would exist as to the intention of the testator to make disposition of the lot and the whole of it.

It is said that the use of the words “my real property,” containing the “homestead,” etc., indicates an intention to dispose only of such interest as testator had in the 51% acres. It will be observed, however, that the same phrase is also applicable to the one acre lot and the one-half acre lot of which he was sole owner, and which is also devised in the same item to his wife.

When we consider the evident object and purpose of the testator in making this will, all doubts as to the meaning of the alleged ambiguous words and phrases are dispelled. The testator gave his wife a life estate in all real property which he then had or which he might thereafter acquire including the 51% acres constituting the homestead, upon the express limitation that none of it was to be sold or exchanged by her during her lifetime, and that then, after her death one year, all of “said property” was to be sold by his executor and the proceeds equally divided between the persons who were the natural objects of their mutual bounty.,

No language could have been used to express more clearly the purpose of the testator to keep all of said real estate including the homestead intact, and undisposed of during the life of his wife, and upon her death to have it sold and the proceeds of the entire property equally divided between his children named in the will. The intention and attempt of the testator to make a complete and final disposition not only of his own interest in the real estate described, but of the interest of his wife in tbe homestead, is, I think, clearly and unequivocally expressed. In this state the rule of decision applicable to the facts in such case is mot open to dispute. The case of Hibbs v. Insurance Co. 40 Ohio St. 543, is substantially a duplicate .of the case, at bar in all essential particulars ; and the reasoning and citation of authorities in that case conclusively settle all controverted questions in this case. It is said that the case at bar may be distinguished from Hibbs v. Insurance Co. supra, in respect to the character of the interest of the wife in the homestead, and in the amount devised in lieu of such interests respectively. In the case under consideration, the wife held a joint interest with her husband, while in Hibbs v. Insurance Co. supra, she held separate title in fee to eighty acres of the tract constituting the homestead, and in both cases the whole tract must pass, if at all, under the general designa-tion “the homestead.” In Hibbs v. Insurance Co. supra, some importance is attached to the circumstance that the land of the wife was so situated and occupied that a “careful survey” would be necessary to determine and mark the boundary between the lands of the husband and wife; and the inference is apparently drawn from this circumstance, that there conld be no just inference of intention on the part of the testator to devise under such designation only a part of the whole tract that constituted the homestead. If an obliteration or removal of the lines of demarkation are important upon the question of intention, then surely the impossibility of making any lines of demarkation, as in the -case at bar, must be equally important. As to the other alleged distinguishing particular between the cases under consideration little need be said. That more ample provision was made for the wife in lieu of Iher interest in the homestead in Hibbs v. Insurance Co. supra, cannot .change the rule of decision; besides it is not apparent from the record that there was any disparity in this respect. In the case at bar the testator gave his wife a life estate in two other lots, the value of the use -of which may have far exceeded her interest as widow- in the estate of her husband and the value of her interest in the homestead. In respect to these two particulars and these alone, attempt is made to distinguish the ease at bar from Hibbs v. Insurance Co. supra, and I am compelled to say that in my opinion the authority of Hibbs v. Insurance Co. supra? has been ignored rather than distinguished in the decision of this ease.

The conclusion reached by the majority of the court is avowedly placed upon the later case of Charch v. Charch, 57 Ohio St. 561. In that case the court found that it affirmatively appeared that the testator did not intend to dispose of the certificate made payable to his wife, and that under the circumstances the language of the will was only applicable to other certificates held by the testator. The learned judge in his opinion approves of the decision of ílibbs v. Insurance Co. supra, in respect to its conclusions of 'fact as well as law, and points out the dissimilarity between the eases.

The case of Melick v. Darling, 11 Ohio 343, is also cited by plaintiff in support of his contention. The correctness of the decision in Melick v. Darling, supra, may be doubted since it was made by a divided court-judge Wood who gave the opinion said “the case is not so clear that he who runs may read.” But, if correctly decided, it is an authority for the defendant rather than the plaintiff. The decision is not placed on a want of clearness in the language by which the southwest quarter of section seven is devised to Jeremiah Beatty, nor on the fact that the testator held this quarter section as tenant in common with another, but solely on the ground that the “general design” of the testator as evinced by the whole will, was to make an equal distribution of his property to each class of heirs. The two grandsons, William and Jeremiah Beatty, each were given a quarter section of land; but to William he gave an undivided half, while to, Jeremiah he gave a quarter section in which he also held an undivided half interest. To give one double whát he gave the other was in conflict with the general scheme of the will; and therefore a majority of the court vras of the opinion that it was not clear that he intended to dispose of the interest of his cotenant in the quarter section devised to Jeremiah.

In the case at bar the general scheme and design of the will is in accord with the terms of the devise by which the entire homestead is disposed of, and is not consistent with any other interpretation.

The suggestion of counsel in their brief in Melick v. Darling, supra, that the doctrine of election should not be applied where the testator has some interest in the property' devised, was not noticed by the court in the decision of that ease, and has no support from any decision in this state.

Finally it is said that the doctrine of election in such cases is a. harsh one. It would in my judgment be a more harsh and unjust doctrine to hold that a devisee to whom a gift has been made, on condition that he surrenders certain of his own property to the disposition of the . devisor, should be allowed to receive the gift and repudiate the condition.  