
    Weston v. Weston.
    A testator, having executed his -will giving, in trust for the benefit of his sole and only child, property consisting of non-ancestral real estate and personal property, and directing that “in case my said child should die without issue her surviving, then all and singular the property so devised shall pass to and vest in my heirs-at-law,” died leaving surviving him his said child, and also his wife, a brother and two sisters who survived the child. Held: That upon the death of the child without issue, the widow of the testator succeeded to the property, under the will, as heir-at-law of the testator.
    Error to tbe District Court of Darke county.
    The action below was for the purpose of obtaining a construction of the last will and testament of Washington A. Weston, who died April 15, 1876. The following is a copy of the will:
    “ Eor the purpose of settling and disposing of my estate, I, Washington A. Weston, of Greenville, Ohio, do make and publish this, my last will and testament, as follows, to wit:
    
      “ First. I give and devise to my beloved wife, Martha J. Weston, one hundred shares of stock in the Farmers’ National Bank, of Greenville, Ohio, in her own right (with authority to her to draw and receive all dividends), for her own separate use and support.
    “ Second. I give and devise to my sisters now surviving, Lucy Green and Ann Hasselman, of Dayton, Ohio, each thirty shares of said bank stock with the limitations following: They are each to draw the dividends in the shares so bequeathed, during their separate lives, if said bank should so long continue to exist and do business as such, and in case the same should terminate during said time then the proceeds of the same shall be reinvested by my executors hereinafter named, and the gains and interests arising from said investments, shall be paid to each of them in like manner during their said lives, and at their death the one full and equal half of the same shall go to their heirs, or as they may by will direct, and the other half thereof to my beloved daughter Mary, on her arrival at the age of majority.
    “ Third. I give and devise to Ellen W. Green, wife of John W. Green, fifteen shares of said bank stock in her own right.
    “ Fourth. I furthér give and devise to my wife, the said Martha, the property where we now reside, being lot 77, 78, 83, and part of 84, in Greenville, for and during the term of her natural life, with all the rents, issues and profits thereof, to be held by her in lieu of dower in my real estate, of which I may die seized ; and I further give and devise to her all my household goods, furniture and effects of whatever character, so being in my house at the time of my decease, to be taken by her without appraisement, and without any other or further accounting thereof.
    “Fifth. I give and devise to Mrs. Eliza J. Waring, the wife of my friend Francis Waring, twelve shares of stock now owned and held by me in the Greenville Building and Savings Association, of Greenville, Ohio, in her own right.
    “Sixth. I give and devise to Sophy Waring, the daughter of my said friend, four shares of said stock, and to Lucy Wilson, sister of my said wife, the remaining four shares of said Building Association stock, and I hereby charge my executor, hereinafter named, with the ¡payment of the dues and charges on each of said shares of said Building Association stock until the same shall be fully paid out, so that the same may pass to said legatees at the full par value thereof of two hundred dollars per share, without any charges or expenses to them.
    “ Seventh. I give and devise to my friend, Mrs. Ann G. Putnam, $700 in money, to be paid her by my executors as soon as the same can be conveniently done after my decease.
    “ Eighth. I direct that my executors deliver to my nephew, John W. Green, a certain note held by me on Green & Heron for the sum of $25,000, fully receipted, which I hereby give to Mm unless I shall have made other disposition of the same during my life.
    “Ninth. Subject to these bequests I hereby order and direct that all the residue of my estate, real and personal, of ■whatsoever name or character, pass to and vest in my wife, Martha J. Weston, my brother, Joseph L. Weston, and my friend, Thomas S. Waring, as my executor, of this, my last will and testament, for the uses and trusts following: That is to say, they are 'to manage my said estate to the best advantage, collect moneys and rents, receive dividends on stock and securities, and from time to time, as the same becomes due, reinvest the same in real or personal estate and securities as they may deem most for the interest of my said estate, until the arrival of my dear child, Mary, at full age, when the same shall pass to and vest in her as my sole and only heir.
    “ Tenth. I further order and direct that in case my said child should die without issue her surviving, then all and singular the estate so devised shall pass to and vest in my heirs-at-law.
    “ Eleventh. I do hereby authorize and empower my said executors, or the survivors, or the survivor of them, at any time that they deem it advisable so to do, to sell my said real estate or any portion of the same, and convey the same by good and sufiicent deeds therefor as fully as I might myself do if living. And I further direct, and I so request the probate court of said county, that my said executors, nor either of them, be required to give bonds for the execution of this trust, as I have absolute confidence in their integrity. And I further authorize my said executors, should my wife at any time so deem, to join with her in the sale of the homestead property so devised to her, and reinvest the proceeds in other property, or bonded or other securities, the proceeds of which shall go to her during life as provided in the fourth item of this will.
    “ Twelfth. I nominate and appoint my said wife guardian of the person of our daughter Mary during her minority.
    “ In testimony wherof I have hereto set my hand and seal this 15th day of April, 1876.
    “Washington A. Weston.” [Seal.]
    
      The testator left surviving him his wife, Martha J., his daughter Mary, and one brother and two sisters of the whole blood, namely, the plaintiff, Joseph L. Weston, and Lucy Green, and Ann Hasselman, mentioned in the second item of the will. Mary died in July, 1876, at the age of ten months.
    At the date of the execution of the will, the testator’s wife was about thirty-eight years of age, the mother of two children by a former husband, one thirteen years of age and the other nine, who had been members of the testator’s family. J os'eph L. Weston was about fifty-eight years old, and possessed of property worth $60,000. He had never been married. Mrs. Green was sixty-six years of age and the mother of one son, John W. Green, mentioned in item 8th of the will. Mrs. Hasselman was sixty-eight years old, and had no children. The sisters, who owned but little property, had lived with Joseph L. for the past twenty-five years and had recieved from the testator from $25 to $30 per month during that period, and had, within that period, cared for one child of testator by his first wife, for four months, from the death of its mother to its own death, and another child of testator by his second wife, from her death to its own, at the age of five years. The testator died at the age of sixty-two, leaving an estate (real and personal) worth $65,000.
    The above state of fact is the substance of the testimony, set forth in a bill of exceptions, taken in the district court, before which the case was tried on appeal from the court of common pleas.
    The district court found that Martha J. Weston, widow of the testator, took as “ heir-at-law of the testator under the tenth clause of the will.
    
      Warren Hunger, with whom was W. O. Howard, for plaintiff in error.
    
      Allen <& JDevor, and John W. Safer, for defendant in error.
   McIlvaine, J.

The judgment in this ease was recorded some weeks since; at which time it was announced that no further report would be made ; but since that time, upon a suggestion from the bar, that the decision is not in harmony with Jones v. Lloyd, 33 Ohio St. 572, the case has been placed in my hands for report.

The principal question in the case arises on the tenth item of the will, which reads as follows :

“ Tenth. I further order and direct that in case my said child should die without issue her surviving, then all and singular the estate so devised shall pass to and vest in my heirs-at-law.”

' The “ estate so devised ” consisted of personalty and non-ancestral realty, given by the ninth item to the child Mary, described by the testator as my sole and only heir. ” This child having died “ without issue her surviving,” the question is, To whom does the estate pass under this item of the will ? To the widow of the testator, or to his brother and sisters ? If the testator had died intestate and without children surviving him, this estate, both real and personal, would have passed to and vested absolutely in the widow, under the statute of descent and distribution of March 14, 1853, as amended April 16, 1862, and Marché, 1865. And under the same statute, if the testator had died childless and intestate, seized of an ancestral estate, the same would have passed to and vested in his brother and sisters, subject to a life estate in the widow. And again, if the testator’s daughter, Mary, had taken this property, upon the death of her father, either by inheritance or devise in fee absolute, the real estate, being, in her, ancestral property, would, upon her death, have passed to and vested in the brother and sisters of her father, subject to a life estate im, her mother, and the personalty, would have passed to her mother absolutely.

Such being the law of descent and distribution at the time the will was made, of which it must be presumed the testator had knowledge, it is quite improbable that he intended, in the event of Mary’s death without issue, that his brother and sisters should take as his heirs at law subject to a life estate in the widow. Such would have been the effect under the will and the statute of descent, as to the realty, if there had been no limitation over at Mary’s death; and it is quite plain, that if the brother and sisters take at all under this clause in the will, they take absolutely.

And it is just as improbable, it seems to me, that the testator should have intended, inflexibly, to designate his brother and sisters by the phrase my legal heirs,” inasmuch as it is indisputable that the estate given by this clause in the will is greater than they, under any circumstances, could have inherited from him, his wife surviving; for by our statute of descent, as between the widow and the brothers and sisters of an intestate, oven in respect to ancestral estates, the widow is not wholly excluded from the inheritance.

We do not understand it to be disputed that the person or persons meant to bo designated in a will as “ my heirs-at-law,” are presumably such as would have inherited in case of intestacy ; save only, as is contended, the identification of heirs is to be made by the common law rules of descent, which excluded the widow.

In support of this contention it is claimed that a husband or wife relict, who succeeds to the estate of the deceased husband or wife, cannot, in a legal sense, be called an heir / and Gauch v. St. Louis M. L. Ins. Co., 88 Ill. 251, is relied on as authority. We think the case cited is directly against the claim. The point there decided is, that one taking a dower estate does not succeed to it as an heir; but Rawson v. Rawson, 52 Ill. 62, and Richards v. Miller, 62 Ill. 417, are approved, which hold that a wife or husband relict who takes under the law of descent takes as heir. A^nd such we think is the legal meaning of the word. Brower v. Hunt, 18 Ohio St. 811.

We readily concur in the proposition laid down in Jones v. Lloyd, supra, that 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. But this proposition in no wise conflicts with the well established rule of construction, that technical words used in a will should have their strict technical meaning, unless it appears that the testator used them in some other and secondary sense.

By the will in Jones’ case, a husband had made provision for the support of his widow, and in lieu of dower, and provided further, that if the widow should assert her right to dower and distribution under the statute., then certain property, which under the provision for her support would have vested in the widow, should be “ shared equally among my heirsplainly indicating that the person or persons meant by “ my heirs ” were others than the widow. The widow in that case would have been the heir of the husband had he died intestate ; but the court found from the context that the husband in his will had not used the word heirs in its technical sense, and so excluded the widow from the provision of the will made in favor of tlie heirs of the testator. An equally noticeable instance in which the word heirs has been used in a secondary sense is found in the fourth proposition in the syllabus of that ease, in which the words “ my heirs,” are construed to mean “ my next of kin, or heirs according to the statute of distribution exclusive of my wife ;” plainly showing, by reference to the statute of distribution of personal property, that the word is used in the sense of distributees. In this sense, the widow in this case would have succeeded as heir to all 'the personal property if her husband had died intestate and childless, or upon death of the child, if the husband had died intestate. But in no event could the brother and sisters have succeeded to the personalty under the statute of distribution, save only in case both wife and child had died before the testator, an event clearly not contemplated.

But there is nothing in this will, or the circumstances surrounding the testator at the time of making the will, that can justify a departure from the ordinary and legal meaning of the word. It is said, indeed, that the phrase “ heirs at law” is used in the plural number, while if the widow alone was intended, it should have been used in the singular. This is not enough : the term used refers to a class, and the class cannot be deprived of the bounty merely because the number of persons composing the class does not correspond with the number of the noun used in describing it; and as to this property, it is quite clear, that if the testator had died intestate, a condition necessary to the relation of ancestor and heir, his brother and sisters would not have been classified among his heirs.

We think the unmistakable intention of the testator was, that this property, in case of the death of his daughter Mary without issue her surviving, should take the identical course under the will, it would have taken under the statute, if he had died childless and intestate. The time when the “ heirs at law” were to take under the will, was at the death of Mary without issue. The number of persons who might, at that time, stand in the relation of heirs to him in respect to this property, was unknown to him; hence the number of the noun used in designating the class does not indicate the testator’s intention as to the particular person or persons who should take under this clause in the will. If his widow was then living, she was the beneficiary intended. If she was not living at that time, his brother and sisters were the persons intended; and if they or their legal representatives were not living, his next of kin.

Judgment affirmed.  