
    (Greene County Court of Common Pleas.)
    MOON, Adm’r, with the Will Annexed, v. HEPFORD et al.
    J. W. H., by his last will and testament, deyised all his real estate to his wife, E. H.. for life. After her death, the proceeds of a sale of said real estate to go to and be vested in his children, J. L. H., J. D. H., J W. H., D. O. H., L. E. H., C. N. N. and B. E. W., “or to and in those of said children who may at the time of the distribution thereof be living-, in equal proportions. Provided, that' if any of said children shall have previously died leaving issue, that then said issue shall receive such proportion of such proceeds as their respective parents would have received if living.”
    The wife, E. H.,deceased prior to the testator; L. E. H., one of the children named in the will, deceased prior to the testator,leaving issue, F. B., who also deceased prior to the testator, leaving issue, F. B.
    Held, That F. B., issue of F. B., deceased, takes the share of the proceeds of the sale of said real estate which L. E. H. would have taken if living.
    (Decided May Term, 1895.)
   SMITH, J.

A construction of certain items in the will of John W. Hepford, deceased, is prayed for in the petition. The items referred to are as follows:

2. “I devise and bequeath to .my wife all the real estate of which I may die seized, wherever found, to have and to hold during her life.”

3. “It is my will that, after the death of my said wife, the entire remainder in said real estate be sold, and,unless mv said wife, in pursuance of the authority hereinafter in her vested shall have otherwise provided, that then the proceeds arising from such sale go to and be vested in my child-’ ren, viz,: James L. Hepford, Joseph D. Hepford, John W. Hepford, Daniel O. Hepford, Lydia E. Hepford, Catharine N. Nesbit and Barbara E. Walton, or to and in those of said children who may at the time of the distribution thereof be living, in equal proportions. Provided, that if any of said children shall have previously died leaving issue, that then said issue shall receive such proportion of said proceeds of said sale as their respective parents would have received if living. ”

4 “I hereby authorize and empower my said wife to dictate and direct by her last will and testament as to the proportion in which the proceeds of the sale of said real estate shall be vested in the children aforenamed, or in the event of the death of any or all of them, then in their issue. ’ ’

Elizabeth Hepford, the wife, deceased prior to the testator. Lydia E. Hepford, one of the children above named, deceased prior to the testator, leaving issue, Florence Bradford, who also deceased prior to the testator, leaving surviving her as her only child and heir-at-law Florence Bradford, defendant herein.

It is claimed that Florence Bradford, the defendant, is not entitled to share in the proceeds of the sale of said real estate, because the word “issue” is used in a restricted sense,and includes only the daughter of Lydia Hepford, deceased. That as the testator has provided that the issue of any deceased child should take the share their respective parents would have taken if living, he thereby limited the application of section 5971, and manifested an intention that his grandchildren only should take in case of the death of any of the children named in the will.

The general meaning applicable to the word" issue” is that it includes grandchildren — that it is as broad as “heirs of the body, ” including lineal descendants indefinitely. 2 Jarman on Wills, 636; Holland v. Adams, 5 Gray, 193; Hall v. Hall, 140 Mass. 267-269; 2 Williams’ Executors, 1198 and note; 2 Wigram on Wills, 307; Adjudged Words and Phrases, 324; 11 Encyclopedia, 869 and notes.

Under the will in question the issue do not take by substitution, but as devisees contingent upon the death of a parent, a child of the testator.

Hence,if Lydia Hepford died during the lifetime of the testator leaving a child, Florence Bradford, surviving her,said child,Florence Bradford, unquestionably was within the express provision of the will which provides that if any of the above children (named) shall have previously died, leaving issue, that then said issue shall receive such proportion of said proceeds of sale as their respective parents would have received if living.

The intent of the testator that the issue of his children should take as devisees is apparent from the fourth clause of the will — where the testator provides that his wife should have power to dictate and direct by last will and testament the proportion in which said proceeds of sale should be divided among the cihldren named, or in the event of the death of any or all'of said children, then in their issue.

To give the word “issue” the general construction,it would mean any lineal descendant of Lydia Hepford. The word ‘issue” is not used in the Avill as a Avord of limitation, but by Avay of designating another class of devisees in the event of the-death of any of the children named.

By the express terms of the will there is no limitation upon the estate which Lydia Hepford should take should she survive the testator, but there is a provision for another class of devisees upon the contingency of the death of Lydia before the testator. This new class of devisees are the “issue” of Lydia, deceased — upon the death of Lydia such issue, by the express terms of the will, take precisely in the same manner and to the same extent as Lydia would have taken had she survived — and expressly as devisees.

If there is nothing in the will to restrict the meaning of the word”issue, ’ ’ then the general meaning applies, and the granddaughter of Lydia Hepford would take as her issue and a devisee.

Section 5971, Revised Statutes, which provides that “when a devise of real or personal estate -is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter leaving issue surviving the testator, in either case said issue shall take the estate devised in the same manner as the devisee would have done if he had survived the testator,” only applies where the testator has himself failed to make a disposition of his estate in anticipation of the possible death of a child or other relative of his, who is a devisee or legatee under his will. Wooley v. Paxon, 46 Ohio St 315.

Where the testator has failed to make provision in anticipation of the possible death of any devisee or legatee, being a child or other relative, then the statute applies and substitutes the issue of such deceased child or other relative for the purpose of oarrying out the probable intention of the testator. In this case the testator has anticipated that some or all of his children might die before him,- and he provides that in such case the issue of such child shall take the share their respective parents would have received if living. .

The will provides that if any of said children — children of the testator before named in the will — shall die leaving issue, that the said issue shall receive such proportion of said proceeds of said sale as their respective parents would have received if living.

The words “respective parents” would seem to refer to the word “children” — children being the children of the testator, and if used in that sense, then the word issue in the will is restricted to children of testator’s children, and extends only to his grandchildren or only to the child of Lydia Hepford, deceased. There are authorities which in like cases have given the word a restricted meaning.

When the word is used with reference to the parent of that issue, as where the issue are to take the share of the deceased parent, it must mean his children; that is, the word “parent” confines the word “issue” to the children of the taker. 11 Encyclopaedia, 875, and authorities there cited.

This determines however, only those who take as devisees or legatees under the will. Restricting the meaning of the word “issue” to the daughter of Lydia ETepford, deceased, such daughter did not take by substitution in the stead of her mother Lydia — but she was a devisee or legatee contingent on the death of Lydiá before the testator.

The issue of Lydia, Florence Bradford, to whom the devise or legacy was made upon such contingency, was a relative of the testator, therefore within the provision of section 5971, Revised Statutes, being a devisee under the will and dying before the testator leaving issue; such issue takes by substitution,being expressly within the provisions of said section.

In either event — if issue is construed to mean heirs of the body of Lydia, or lineal descendants indefinitely — then Florence Bradford, minor defendant herein, takes as a devisee or legatee under the will.

T. L. Magruder, for plaintiff.

Little & Spencer, for Florence Bradford.

M .1. Hartley and Alexander & Whitner, for Barbara E. Walton etal.

If the word, “issue” is restricted to the children of Lydia, then the child of Lydia was a devisee or legatee under the will, contingent upon the death of Lydia, and such child having survived Lydia and deceased prior to the testator, and being a relative of the testator — leaving issue who survived the testator, such issue, Florence Bradford, minor defendant, takes by substitution under section 5971.

(Affirmed by the Circuit Court, October Term, 1895.)  