
    WILLS.
    [Cuyahoga Circuit Court,
    June 17, 1899.]
    •Caldwell, Marvin and Hale, JJ.
    Charlotte A. Ober v. George H. Hickox et al.
    1. Construction of a Will.
    In construing a will, the entire will and codicils thereto must be considered .and construed together, and effect given to each of the instruments. The intention of the testator is to govern. If it can be gained from the language of the instrument, it is to be gained from that.
    2. Statement of Case and Construction of a will and Codicils.
    Where a will recites that the testator having deeded to his daughter Cornelia, certain property, with the desire that no part of his estate should descend to his daughter, as he intended the land deeded to her to be her full share of his estate, otherwise his estate was to be distributed according to law, and a codicil gave one dollar t© the testator’s daughter E., the balance of the estate to be distributed “to my remaining children, G., L., M., S., Charlottte, and R.,” and a second codicil gave to E., $1,000, “as her full share,” the balance of the estate to be divided among “my other heirs according to law,” the three parts are to be construed together, and to give any force and effect to the .original will, Cornelia must be held not included in the term “my other heirs” as used in the second codicil.
    3. Meaning of the Word “Heir.”
    An heir at. common law is one who, after his ancestor’s death, has a right to inherit all the intestate estate; by descent, he inherits. But while living, a man stricly has no heir. So that the word heir as used in the second codicil to this will, is not used in its strictest sense, but, in common parlance, it is used to denote children.
   MARVIN, J.

The case of Charlotte Ober et al. v. George H. Hickox et al., is a proceeding in partition. The parties to the cáse, each of them, derive whatever rights they have in the property which it is sought to apart, as devisees under the. will of James M. Hickox,. deceased.

Every question in the case has been disposed of by the court and parties advised of the disposition in court, except the construction to be given to this will.

The will is made up, as admitted to probate, of an original will and two codicils.

The original will was executed, as appears from its date, on December 14, 1866. So far as any devise is made in this will, it reads:

“Having this day deeded to my daughter, Cornelia E. Martin, twenty-five acres of land in Geauga county, it is my desire that no part of my estate, real or personal, shall descend to be received by her or by her heirs through her as I intend the land this day deeded to her, to be her full share of my estate, otherwise my estate to be distributed, according to law.”

On January 31, 1873, as appears from its date, this instrument was executed by him, the testator, James Hickox: “Whereas, my daughter, Evangeline C. Hickox, has recently married Myron Witherell, and whereas she has ■ heretofore received from me certain advancements, it is my desire to make the following alterations in the foregoing will made by me on the fourteenth day of December, 1866.

“I do hereby, therefore, will and bequeath to her out of my estate the sum of one dollar as the full portion and share of my estate after my decease ; the balance of the same to be distributed according to law, to my remaining children, George H. Hickox, Larmon H. Hickox, Myron A. Hickox, Sarah J. Conrad, Charlotte A. Hickox and Rebecca *W. Hickox.”

The testator had seven children, including Mrs. Martin who is named in the original will as the one to whom he had that day conveyed twenty-five acres of land in Geauga county, by reason of which he made no bequest or devise to her. One of the seven children is the daughter Evangeline C. Hickox, has. recently married Myron Witherell, and codicil, for, although it is not designated as a codicil, it, in terms, says that he makes “the following alterations ki the foregoing will.”

By this codicil, Mrs. Myron Witherell is bequeathed one dollar, and it is provided that she is to have nothing more out of the estate; and he says, “the balance of my estate is to go according to law to my remaining children,” and then names five children, leaving out Mrs. Martin altogether, and only giving to Mrs. Witherell the one dollar.

That is in exact accordance wtih his original will, except as to Mrs. Witherell.

Later on, the date we have no means oi; knowing, by anything that appears upon the codicil or by any evidence before us except as can be gathered from one or two facts to which attention will be called, — this codicil was executed and, although this is not designated a codicil, it clearly was made as a codicil, because it refers to the preceding codicil, and that not only is here referred to as a codicil but it refers to the original will in turn.

This second codicil reads as follows:

“Having changed my mind in reference to the division of my property after my decease owing to the changes that have taken place in my family since the above codicil was made, I hereby will and bequeath to my daughter, .Evangeline C. Witherell, the sum of one thousand dollars to be paid out of my .estate as her full share and portion- in the distribution thereof, the balance to be divided among my other heirs according to law, * * *.”

The question made here is as to whom “the remaining heirs” are, as used in this codicil. Did the testator mean “my children all other than Mrs. Witherell” to whom by this codicil he bequeathes one thousand dollars? Or did he mean “the children other than the two named in the will and the codicil, the one as having received by deed twenty-five acres of land in Geagua countv, and the other as having received one thousand dollars.”

We permitted evidence to be introduced as to what changes had taken place, if any, in the testator’s family subsequent to the making of the first codioil. The only evidence offered on the subject, was testimony tending to show that the testator was dissatisfied with the marriage which his daughter Evangeline made with Myron Witherell, for some reason, -- - no reason is given,- -but for some reason he was dissatisfied; and that thereafter he became reconciled to that daughter before his death; whether before or after the making of this codicil we can only infer by the language of this codicil by which he increases the amount which she should receive a thousand-fold, from one dollar to one thousand dollars. Therefore, it is fair to infer, and to say that he changed his mind as to that daughter, for he increases her bequest a thousand-fold.

A. R. Odell, counsel for plaintiff.

I. E. Her slier. C. E. Pennewell, counsel for defendants.

It is urged on behalf of Mrs. Martin that she is “one of my remaining; heirs” as used in this second codicil, because she was one of his children other than Mrs. Witherell.

The rules of construction as to wills, which apply here, 'are farmliar;, that the entire will and codicils must be considered together and if construed, effect must be given to the provisions of each of the instruments. The intention of the testator is to govern. If it can be gained from the-language of the instrument, it is to be gained from that.

But it is said that the word heirs, “my remaining heirs,” by its own terms includes all the remaining children.

Strictly that is not true. Strictly no man has any heir at all while lié-is living, if we are to be technical about the word heir as used. An heir at common law is one who, after his ancestor’s death, has a right to inherit all the intestate estate; by descent, he inherits. But while living, a man. strictly has no heir. $o that the word heir, as here used, is not used in its strictest sense, but in common parlance it is used to denote children. Frequently it is said that one has an heir born into his family — an heir, a. child, is born. And it is said that it was that on the part of Mrs. Martin. But it is not an unusual thing to use the word heir in another sense, to-wit: “Those for whom I have made provision in my will. I have made-my three oldest children my heirs and excluded from heirship my two remaining children.”

Everybody would understand if he used that language, that he meant he had excluded from any benefit by testament, the two remaining children.

In the first codicil, he gives to his “remaining children.”

In this second codicil he gives to his “other heirs.” On the part of the remainder of these children, other than Mrs. Martin and Mrs. Withered who has an interest in a way.

On the part of the other remaining children other-than Mrs. Martin, it is urged that he meant, by his “remaining heirs,” the children to whom-he had bequeathed and devised his property in the first codicil. And that F true, or else this codicil was a complete will in itself and revoked all other wills because if this means to include all his other children, this second codicil, then all that preceded it is to be counted’ as nothing, for his-emire "property would be disposed of by this second codicil.

We think it clear, that he did not intend to do it; that he meant it as a. codicil; that he meant the first codicil should continue in force except as modified by this, it is evident from the fact he refers to that and wants'fo> change it, that he meant the will should remain in force by the first codicil for he wants to make the change. And we think they were clearly intended by the testator to be construed together and, if construed together, and if the original will is to have any force at all in any way or manner, then this seconrl codicil must be held, when it speaks of “his remaining-heirs” as meaning; those presons to whom by his first codicil he had given his property other than one dollar that he in that codicil gave to Mrs» Witherell.

We hold, therefore, that the estate to be apparted in this proceedings is to be apparted to the children and their representatives, other than Mrs» Witherell and Mrs. Martin, and the decree will be taken accordingly.  