
    McKelvey v. McKelvey.
    
      Will — Construction—“Heirs”—Each relative receiving legacy so regarded.
    
    A testator, who was a bachelor, gave a legacy to each living brother by name as his brother ; he also, by name, gave a legacy to each child of ■ his deceased brothers and sister, designating the children as heirs of such deceased brothers or sister; and, by name, he gave a legacy to each child of an aged and very feeble sister, designating these children as heirs of such sister, but gave her nothing;' he also gave legacies to some, not relatives; and had the infirm sister been dead, the relatives who received legacies would have been all of his heirs apparent, though the testator called no one his heir except in the residuary clause, which is : “ It is my will and desire that whatever money will be left after paying the different sums given to my heirs in this my last will and testament, shall be divided equally amongst them.” In the distribution of the residue — held, that the testator regarded among his heirs each relative to whom he had given a legacy; and such children of the brothers and sisters, take, per capita, with such brothers, an equal share in the residue.
    Error, to the District Court of Belmont county.
    Thomas McKelvey died in February, 1882, leaving his will, made on June, 23, 1879. On March 11, 1882, this will was duly admitted to probate in Belmont county, and is as follows :
    “Item 1. I give and devise to the heirs of my deceased brother James McKelvey: To his son Robert McKelvey, thirteen hundred and eighty-eight dollars ($1,388); to his son James McKelvey thirteen hundred and eightv-eight dollars ($1,388); to his son David McKelvey, one thousand three hundred and eighty-eight dollars ($1,388); to his daughter Margaret Ann Mitchell, eight hundred dollars ($800); to his daughter Rachel Dixon, five hundred dollars ($500); to his daughter Mary McConnell, eight hundred dollars ($800).
    Item 2. I give and devise to the heirs of my sister Elizabeth McCaffrey : To her daughter Margaret McCann, eleven hundred and twenty dollars ($1,120); to her daughter Rebecca Robison, nine hundred dollars ($900); to her daughter Isabella Paul, $100 in addition to $800 that she has already received; to her daughter Martha Reid, nine hundred dollars ($900); to her daughter Fanny McCaffrey, nine hundred dollars (900); to her son James McCaffrey, nine hundred ($900).
    Item 3. I give and devise to the heirs of my deceased brother Robert McKelvey: To his son James McKelvey, twelve hundred and thirty-three dollars ($.1,233); to his son John McKelvey, twelve hundred and thirty-three dollars ($1,233); to his son Thomas McKelvey, twelve hundred and thirty-three dollars ($1,233); to his daughter Eliza Harvey, twelve hundred and thirty-three dollars ($1,233); to his daughter Nancy Myers, twelve hundred and thirty-three dollars ($1,233).
    Item 4. I give and devise to my brother Weir McKelvey, five thousand dollars in addition to a mortgage that I now hold on the house he now lives in, in Bellaire city, said mortgage to be released at my decease.
    Item 5. I give and devise to my brother George McKelvey, six thousand dollars.
    Item 6. I give and devise to the heirs of my sister Margaret Drugan: To her son William Drugan, fifteen hundred dollars ($1,500).
    Item 7. I give and devise to Matilda Anderson, wife of Jacob Anderson, five hundred dollars ($500).
    Item 8. I give and devise to the United Presbyterian church of Belmont congregation, to be applied to the building of a new church for Belmont congregation, nine hundred dollars ($900). I also give and devise one hundred dollars ($100), the interest of which shall be applied to .keeping the graveyard at the Belmont United Presbyterian church in good order’, and the trustees of said church shall keep the said one hundred dollars on interest for said purpose and no other.
    Item 9. I set apart out of my personal property or money, twelve hundred dollars for my funeral expenses and Scotch granite monument.
    
      Item 10. I give and devise to my brother Samuel Mc-Kelvey, twenty-two thousand and eighty dollars ($22,080).
    Item 11. I give and devise to my brother Joseph McKelvey, twenty-two thousand and eighty dollars ($22,080).
    Item 12. It is my will and desire that whatever money will be left after paying the different sums given to my heirs in this, my last will and testament, shall be divided equally amongst them.
    Item 13. I do hereby nominate and appoint David Mc-Kelvey and William McKelvey, sons of Samuel and Joseph McKelvey, executors of this, my last will and testament.”
    In settling up the estate there was about $20,000 to be disposed of under “Item 12” of the will.
    The children of the deceased brothers and sisters of the decedent, who are legatees under the will, claim that after paying the costs and expenses of administering the estate and the several legacies provided for in the will, the residue should be equally divided, per capita, among them and the surviving brothers of the decedent.
    But the surviving brothers of the testator claim that the residue should be distributed, per stirpes, equally among the living and deceased brothers and sisters of the decedent, so that only the share of a deceased brother or sister should be distributed equally among his or her lawful heirs.
    The executors brought this action for the court to construe the will and to determine the matters in doubt and controversy. The following is an agreed statement of facts used on the trial in the district court on appeal:
    “ It is agreed that Thomas McKelvey was never married; that he had originally six brothers- and two sisters as his next of kin; that prior to the time of making his will, being the will in controversy, two of his brothers, viz : James and Robert, and his sister, Margaret, had deceased; that he made his said will on the 23d day of June, 1879; that he had then living four brothers, viz: Weir, George, Joseph, and Samuel, and one sister, viz., Elizabeth McCaffrey, all well known to him; that his sister, Elizabeth, was at the time aged and in very feeble health; that his brother, James, died, leaving as his children and heirs the persons named in the first item of said will, who are all living; that his sister, Elizabeth McCaffrey, who was living as aforesaid, had the children named in the second item of said will, and no others; that they are all still living; that Elizabeth died since this case was tried in the court of common pleas, leaving said persons as her heirs; that his brother, Robert, had died as aforesaid, leaving the persons named in the third item of said will as his only heirs, who are all living; that his sister, Margaret, had died, leaving as her only heir the person named in the sixth item of said will, who is still living; that his brothers, Weir, George, Joseph, and Samuel, are still living; that the testator died about February, 1882, aged about •-years, leaving no other heirs, except the persons named in said will; that he left an estate valued in round numbers at about $100,000; that after paying the specific bequests, there will remain to be distributed under the 12th item of the will about $20,000; that Matilda Anderson, named in the 7th item of the will, is not an heir of said testator.”
    On the trial in the district court, the agreed statement of facts, and the copy of the will on file with the petition, were all the evidence that was offered, and “the court found and adjudged that the remaining estate of the testator, under the 12th item of the .will, ■ should go to the brothers and sisters of the testator living, each one-eighth part thereof, and to the children of the deceased brothers and sisters of the testator, to each family, per stirpes, the one-eighth part thereof.” The finding and judgment were excepted to, and a motion for a new trial was overruled, and a bill of exceptions was filed.
    The plaintiffs in error now claim that:
    “The court erred in adjudging that the residue of the estate of Thomas McKelvey, deceased, to be distributed under item 12 of his will, should be divided into eight shares, and one share each given to his living brothers and sister, and one share each to the families of the deceased brothers and sister.
    “The court erred in refusing to divide said residue of the testator’s estate into twenty-two shares, and giving to plaintiffs in error each one share.”
    
      Wm. Okey $* Son, for plaintiffs in error.
    
      L. JDanford, for the brothers and Wm. M. Dragan.
    
      George R. E. Gilchrist and Robert White, for Elizabeth McCaffrey’s administrator and other defendants in error.
   Eoleett, J.

We need not examine or restate the principles governing the constructions of wills, for in Townsend v. Townsend, 25 Ohio St. 477, this court held that:

“ 1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.

“ 2. Such intention must be ascertained from the words contained in the will.

“3. The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.

“ 4. All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.”

The will and facts show that Thomas McKelvey remembered each brother and sister, and the children of those deceased, and the children of his infirm sister, Elizabeth; and that he did not intend to die intestate as to any part of his property. Collier v. Collier, 3 Ohio St. 373. He considers all his estate to be money, and that no debts exist.

The sole question is, when all the first eleven items as specified in the will are satisfied, amongst whom shall the residue be divided ?

“ Item 12 ” reads : “ It is my will and desire that whatever money will be left after paying the different sums given to my heirs in this, my last will and testament, shall be divided equally amongst them.”

The word “them” personates and refers to the words “ my heirs,” as there qualified; but what persons were intended by the testator when he thus used the words “ my heirs?” They are persons to whom the testator gave different sums in the will. In the strictly proper sense of the word heir, no one is an heir until after the death of the ancestor; yet we use the word heirs as including heirs-at-law, heirs presumptive, and heirs apparent. Iu arriving at its true meaning in a particular will, we must look at all parts of the will to see in what sense the word is used by the testator. When the testator uses the word heirs, does he mean to designate children, or brothers and sisters, or legatees, or heirs apparent ? etc.

In this will the testator used “ heirs ” for children of his living sister, Elizabeth, and for the child of his deceased sister, Margaret, and for the children of his deceased brothers, James and'Robert. In other parts of his will the testator does not designate his brothers or sisters as his heirs, but he calls each one deceased, “ my deceased brother ” or “my sister,” and he calls each one living, “my brother” or “ my sister.”

He gives nothing to his living sister, Elizabeth. As she was old and infirm the testator probably expected to outlive her, and so regarded her as dead, and he gave to her children, by name, as though she were dead (and she was dead when the ease was tried in the district court).

Had Elizabeth been dead, all his relatives to whom he gave legacies would have been all his heirs apparent.

In the first eleven “ items ” of his will, the testator calls no one his heir; but he used the word heirs either for children who could inherit from a deceased parent, or for children who were heirs apparent of a living sister.

The testator had given nothing to his deceased brothers and sister, or to a living sister, but he had given by name to each one of their children — their heirs-at-law and heirs apparent — .as the persons who should share definite portions of his property. From his bounty, for apparently good reasons, probably regarding her as deceased, he had left out his living sister, Elizabeth, but he gave to her children, designating them as her heirs, and to his heirs apparent (in-eluding as such the children of Elizabeth) he had given carefully computed legacies of different amounts. These heirs apparent he seems to regard as his own heirs; and he does not express a desire that the residue of his property should be divided among those named in proportion to the sums given.

Had the testator died intestate as to the residue, the law would divide it, as the living brothers claim it should be divided now. But a testator is not presumed to die intestate as to any part of his estate. Collier v. Collier, supra. And here the testator declares in Item 12 : “ It is my will and desire that whatever money will be left after paying the different sums given to my heirs, in this, my last will and testament, shall be equally divided amongst them.” His thoughts are upon the residue, and to whom and how this residue shall go. His use of the word “ heirs,” and the nature of the gifts and legacies, do not show that in the use of the words “ my heirs ” he included all the legatees. And the most reasonable meaning of the testator in this will is, that the word “ them ” refers to the “ heirs ” to whom different sums had been given in this will.

In his will he had given “ different sums” to twenty-two persons, who were heirs apparent, if we regard Elizabeth as deceased, as the testator seemed to regard her.

The money left — the residue — should be “ divided equally amongst them,” the twenty-two “heirs” named in the will. Only the residue is in dispute here.

This construction is in harmony with every part of the will, and gives effect to each part. See Huston v. Crook, 38 Ohio St. 328.

The judgment of the district court is reversed, and cause remanded for further proceedings.

Johnson, J., dissented.  