
    Moon, Administrator, et al. v. Stewart et al.
    
      Doubtful clauses in a will — Will be interpreted — Not entirely by general rules, etc. — But reasonably by the court in the particular case, when.
    
    1. Where there are doubtful clauses in a will the court, in determining the meaning that the testator intended they should have, will not be controlled entirely by general rules, or by judicial decisions in cases apparently similar, but will interpret them reasonably in the particular case.
    2. M. executed, in compliance with the statute as to execution of wills, an instrument (which by its terms she declared to be her will) in which she appointed an executor, “after my death to settle up all property both personal and real,” the second item being, “I hereby make my two granddaughters, L. S. and E. B., each equal heirs with my own children.”
    
      Held: The instrument is dispositive and devised to the two granddaughters named, each an equal share with the children of testatrix, in her estate.
    (No. 13620
    Decided February 11, 1913.)
    Error to Circuit Court of Greene county.
    This was a proceeding brought in the court of common pleas of Greene county by Charles H. Moon, as administrator with the will annexed of Clara Moon, deceased, praying the direction of the court in regard to the construction of the last will and testament of Clara Moon, deceased. The defendants, Lulu Stewart and Ella Break-field, in their answer to the petition, set forth that, by the last will and testament of Clara Moon, the testatrix disposed of her whole property, and that they were each to share equally with her own children in the distribution of her estate, both personal and real, and, further, that, under item second of said will, they each are now vested with an undivided one-seventh of said estate.
    The court of common pleas construed the will to the effect that, under item second of said will, Lulu Stewart and Ella Breakfield, defendants, took no interest whatever in the property of the said decedent, because the court found that there was no disposition of the property to them in the will.
    On appeal to the circuit court of Greene county, that court decreed that, under the second item of said will, the defendants, Lulu Stewart and Ella Breakfield, each took an equal interest with the other children of said decedent in her estate, and entered a specific decree dividing the estate between the several devisees referred to in the will. The following is a copy of the will:
    “I, Clara Moon, of Bowersville, Greene county, Ohio, being of sound mind and memory, do hereby make, publish and declare this to be my last will and testament, hereby revoking and making void all former wills by me at any time heretofore made.
    
      “First. I order and direct my executors as soon after my death as possible to pay off and discharge all debts and liabilities that may exist against me at the time of my decease.
    
      “Second. I hereby make my two granddaughters, Lulu Stewart and Ella Breakfield, each equal heirs with my own children.
    
      “Third. I hereby nominate and appoint Frank Stewart as the executor of my estate after my death and to settle up all property, both personal and real.
    “In witness whereof I have hereunto subscribed my name this twenty-seventh day of June, A. D. 1911.
    “Clara Moon.
    “The above and foregoing instrument was at the date therefore signed, sealed, published and declared, by the said Clara Moon, as and for her last will and testament in presence of us, who at her request and in her presence, and in the presence of each other have subscribed our names as witnesses.
    “Gertrude Gorham, residing at Jamestown, Ohio.
    “Rose O’Day, residing at Bowersville, Ohio.
    “Acknowledged before me and signed and sealed in my presence this twenty-seventh day of June, A. D. 1911.
    “L. S. O’Day.
    
      "Justice of the peace in and for Greene county, Ohio”
    
    This proceeding is brought to reverse the judgment of the circuit court.
    
      Mr. Marcus Shoup, for plaintiffs in error.
    We submit that there is absolutely nothing of a testamentary character in the will here involved other than to name an executor. Page on Wills, Secs. 2, 45, 46, 48; Coffman v. Coffman, 85 Va., 459.
    
      We claim that item two of this will is not testamentary, if measured by any of the above principles of law. It attempts to designate heirs— this is not testamentary. If the thing here attempted to be done is to prevail then the testatrix repeals Section 8598, General Code. 1 Rockel’s Probate Prac., Sec. 1013; Section 10503, General Code.
    A will is an instrument by which a person makes a disposition of property to take effect after death. 1 Jarman on Wills (6 ed.), *18; Crane v. Doty’s Exrs., 1 Ohio St., 282; Baker v. Baker, 51 Ohio St., 222; Redfield on Wills, Sec. 2; 29 Am. & Eng. Ency. Law (1 ed.), 124.
    The statute of descent operates upon all intestate property, and the course which it indicates can be changed only by testamentary disposition. Mathews v. Krisher, 59 Ohio St., 562; Crane v. Doty’s Exrs., supra; Bane v. Wick, 14 Ohio St., 508.
    It is a rule of law that the heir is not to be disinherited without an express devise. There must appear in the will an actual gift to some other definite object or person. Gibson v. McNeely, 11 Ohio St., 152; 2 Jarman on Wills (2 ed.), *741; 1 Jarman on Wills (2 ed.), *465; Bane v. Wick, supra.
    
    No matter what was the intention or purpose of testator it must be disregarded in the absence of disposition. Crane v. Doty’s Exrs., supra; In re Williamson’s Will, 5 N. P., 1, 6 Dec., 505; 1 Jarman on Wills (6 ed.), *267.
    
      To allow an intestate to control the course of descent by an executory contract would be to allow him to set aside the laws of the state. Needles v. Needles, 7 Ohio St., 445.
    No matter how apparent be the intention of the testator, the heir at law inherits unless the estate is given to someone else. Gano v. Fisk, 43 Ohio St., 469; Carter v. Reddish, 32 Ohio St., 12; Reinhard v. Reinhard, 15 Dec., 741; Remsen on Wills, 343, 344, 346; Miller v. Gilbert et al., 144 N. Y., 68; Colton v. Colton, 127 U. S., 310.
    Statutory provisions and not the intention of the testator govern in determining the validity or legality of a will. Mader v. Apple, 18 Dec., 801; Sears v. Sears, 77 Ohio St., 104; Burke et al. v. Lee et al., 76 Va., 386; Townsend’s Exrs. v. Townsend, 25 Ohio St., 477; McKelvey v. McKelvey, 43 Ohio St., 217; Page on Wills, 972.
    Could the claim be successfully made that this would be dispositive or that such an instrument would be entitled to probate? Coon v. DeMoore, 25 C. C., 776.
    We can find from this instrument that she intended to make these defendants in error her heirs, but we cannot find that Clara Moon ever intended, or did, as a matter of fact, dispose of any of her property by the instrument. Mathews v. Kricher, 59 Ohio St., 562; Wilkins v. Allen, 18 How., 385; Walker v. Parker, 13 Pet., 166; Pendleton v. Larrabee, 62 Conn., 393; Bill v. Payne, 62 Conn., 140; Downing v. Bain, 24 Ga., 372; Wilder v. Holland, 102 Ga., 44; Andrews v. 
      Harron, 59 Kans., 771; Howard v. Am. Peace Soc., 49 Me., 288; Mullarky v. Sullivan, 136 N. Y., 227; McIntyre v. Ramsey, 23 Pa. St., 317; Stewart’s Estate, 147 Pa. St., 383; Hoover’s Lessee v. Gregory, 10 Yerg. (Tenn.), 444; Wootton v. Redd’s Exr., 12 Gratt., 196; Page on Wills, Sec. 467; Barnitz’s Lessee v. Casey, 7 Cranch, 456; 1 Rolle Abr., 626; Couden v. Clerke, Hob., 30; Clerk v. Smith, 1 Salk., 242; Allen v. Heber, 1 Black. W., 22; Davis v. Davis, Exr., 62 Ohio St., 411; Geery v. Skelding, 62 Conn., 499; Fahnestock’s Estate, 147 Pa. St., 327.
    If Clara Moon made no will we submit that this court cannot make one for her disposing of her property, but must permit the heir at law to take the property as provided by statute in all cases of intestacy. Wright v. Hicks, 12 Ga., 155, 56 Am. Dec., 451; Denn v. Gaskin, 2 Cowp., 657; Schauber v. Jackson, 2 Wend., 13; McIntire et al. v. Cross et al., 3 Ind., 444; Blackman, Exr., v. Gordon, 2 Richardson’s Eq., 43, 44 Am. Dec., 241; Boisseau v. Aldridges, 5 Leigh, 222, 27 Am. Dec., 590; Brush v. Ware, 15 Pet., 93.
    The intention to be sought for is not that which existed in the mind of the testator but that which is expressed in the language of the will. Young’s Estate, 123 Cal., 337; Abercrombie’s Exr. v. Abercrombie’s Heirs, 27 Ala., 489; Arthur v. Arthur, 10 Barb., 9; Caldwell v. Caldwell, 7 Bush (Ky.), 515; Given v. Hilton, 95 U. S., 591; Cleghorn v. Scott, 86 Ga., 496; Collins v. Collins, 126 Ind., 559; Damon v. Bibber, 135 Mass., 458; State v. Holmes, 115 Mich., 456; Leigh v. Savidge’s Exr., 
      14 N. J. Eq., 124; Booth v. Baptist Church, 126 N. Y., 215; Lessee of Smith v. Jones, 4 Ohio, 115; Gilpin v. Williams, 17 Ohio St., 396; Colston v. Bishop, 1 O. C. D., 257, 1 C. C., 460; Alexander v. Mendenhall, 1 Dec., 655, 32 W. L. B., 173; Martin’s Estate, 185 Pa. St., 51; In re Walkerly, 108 Cal., 659; Sturgis v. Work, 122 Ind., 134; Burke v. Lee, supra.
    
    If an intent of the testator is doubtful, and two constructions are applicable thereto, that construction should be adopted which casts the property where the law would cast it if no will had been executed. Kilgore v. Kilgore, 127 Ind., 276; Long’s Estate, 228 Pa. St., 600; Cross v. Cross, 23 Wash., 676.
    
      Mr. William S. Hozvard, for defendants in error.
    Our contention is that under the second item of this will, Lulu Stewart and Ella Breakfield each take an equal share of the estate of Clara Moon, deceased, with her children, after the payment' of debts and costs of administration. Page on Wills, Secs. 43, 44, 45, 49, 58.
    There can be no possible question but what this is a will. It has been executed with all the formalities that the law requires, and has been admitted to probate.
    We submit that the finding of the circuit court was right and that any finding which would have deprived Helen Moon and Ernest Moon from any participation in the estate of Clara Moon, deceased, would have been error, as they take their parent’s share under the statute. Section 10581, General Code.
    This section of the Code has been construed by the supreme court in Shumaker v. Pearson et al., 67 Ohio St., 330; Woolley et al. v. Paxson et al., 46 Ohio St., 307.
    It is claimed that the instrument lacks dis-positive words, and, therefore, does not give anything. Our claim is that it is only a question of arriving at the intention of the testatrix as gathered from the language she has chosen to express her intention, and then there is nothing for the court to do but to carry the same into effect. Smith v. Bell, 6 Pet., 68; King v. Beck, 15 Ohio, 561; Gates v. Pond, 5 C. D., 297; Jones v. Lloyd, 33 Ohio St., 572; Stevenson v. Evans et al., 10 Ohio St., 311; Townsend’s Exrs. v. Townsend et al., 25 Ohio St., 477; Woodruff v. Woodruff, 13-23 O. C. C., 408; Carter v. Reddish, 32 Ohio St., 1; Bane v. Wick, 19 Ohio, 335.
    There is only one case in Ohio similar to the one at bar, and that is the case of In re Williamson’s Will, 8 Dec., 47. It is true that the question before the court in this case was one of admitting the will to probate, but the reasoning of the court is clear that if the matter had been before the court on a question of construction of the will what disposition would have been made of' it. Colton v. Colton, 127 U. S., 309; 2 Blackstone’s Comm., 499.
    
      Where there are no express words of donation, the intention follows by implication. Shaw & Campbell v. Hoard et al., 18 Ohio St., 233.
    Reference to a person as heir has been held to create a devise by implication to that person. Tilly v. Collyer, 3 Keb., 589; 1 Jarman on Wills (6 ed.), 529.
    The circuit court in disposing of this case decided that the will is dispositive and that the manifest intention of the testatrix is to make her two grandchildren equal heirs with her own children in the distribution of the estate, and cited the following cases: In re Williamson’s Will, 8 Dec., 47, 6 N. P., 79; Brenchley v. Lynn, 2 Rob. Ecc. Rep., 441; Bayley v. Bailey, 5 Cush., 245; Townsend’s Exrs. v. Townsend, 25 Ohio St., 477.
   Johnson, J.

It is urged with much impressiveness by counsel for plaintiff in error that the instrument in question makes no attempt to dispose of the property of testatrix, and does not contain a devise to anyone; that it is not a “will;” and that the testatrix died intestate as to all of her property.

It is contended that even if it be conceded that she intended to make a disposition of her property, the language used does not accomplish her purpose, however laudable.

It may be safely remarked that in the report of cases involving the construction of wills it is no longer necessary or profitable to discuss the various general rules which control the inquiry. They are well established, simple, and familiar. Rules for construing- wills are less rigid than those for construing- other instruments. Where a will bears the earmarks, as in this case, of having been drawn by a layman, and not by a lawyer, the court in the endeavor to arrive at the intent of the testator will not view the language technically, but liberally, and with reference to its popular meaning. It is very rare that any two wills present precisely the same question, and, therefore, in construing doubtful clauses the court will ascertain the intention of the testator, as the language of such clauses may reasonably be interpreted in the particular case. It has been well said that cases on wills may well guide as to general rules of construction, but unless a case be directly in point in its essential circumstances and data, it should have little weight with the court.

As to the will in controversy here, it will be noted that there is no contention that the instrument was not executed in full compliance with the statute as to tlie execution of wills, nor that the testatrix has attempted to do anything, or make any disposition of her property which controverts any provision of law.

The briefs of counsel disclose various statements as to the requisites of a will. In Colton v. Colton, 127 U. S., 309, the supreme court of the United States adopted Blackstone’s definition, which declares a will to be “the legal declaration of a man’s intention which he wills to be performed after his death.” There is in that definítion no specific mention of a devolution of property.

However, it may be conceded that if the paper in question here does not dispose of property it is not a “will,” and whether it does or not is really the sole question made in the case.

Before the defendants in error can be entitled to an interest in the estate of the testatrix,, it must appear from the whole writing that she intended to, and did, by it, give to them an interest which is definite and ascertainable from the will itself. Taking it as a whole, it is impossible to read it without, in the first place, observing a clear intention on the part of Mrs. Moon to dispose of her estate after her death to the persons referred to; in short, to make her will. She so declares in the opening, and she declared to the witnesses when she signed it that it was her last will and testament. While the designation of an instrument does not of itself determine its legal character, it is entitled to weight in ascertaining the meaning in which parties to it, use particular words contained in it.

In the first item she directs her executors to pay off and discharge all debts and liabilities that may exist against her estate at her death, and in the third item she appoints an executor “to settle up all property, both personal and real.” In the second item, which has given rise to the contention between the parties in this case, she provides, “I hereby make my two granddaughters, Lulu Stewart and Ella Breakfield, each equal heirs with my own children.” It is contended by plaintiff in error that in that clause there is no provision that anyone shall take any interest in the estate of the testatrix and that it is not dispositive, and, further, that it cannot be regarded as a provision making the two granddaughters heirs, for the reason that the only method provided by which one can make another his heir is that prescribed in Section 8598, General Code, whereby proceedings in the probate court may be had looking to that end.

While we might be disposed to agree with counsel that a person cannot be made an heir at law except in the manner prescribed in that section, we do not regard that as the question made here. The testatrix manifestly did not use the word “heirs” in any technical sense, and in the interpretation of that word such a meaning should be given it as the testatrix evidently intended it should have, as disclosed by the whole instrument. The rule is familiar, but is succinctly stated in Jones v. Lloyd, 33 Ohio St., 572, where it is held 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.”

It is apparent from the reading of this clause in connection with the balance of the paper that the testatrix used the word “heirs” with the object and intention to include the person referred to among her devisees, and she evidently used the word “heirs” in the sense of “devisees.” The lady was not attempting to designate her two granddaughters, as persons who would take under the statutes of descent, and, therefore, as “heirs at law,” but she was designating them as persons who would take under the paper she was then executing, and which she was then declaring to be her will.

Attention should be given to the language in the third item which provides for the appointment of an “executor of my estate after my death to settle up all property, both personal and real.” Not only to settle up debts but all property. It is inconceivable that she used the words “to settle up” in any other sense than “to divide up” all property, both personal and real, between the persons indicated in item two, after payment of debts. Giving to the words, in these two different items, the meanings above indicated, which course we think is clearly enjoined by salutary rules for the construction of such instruments, and by principles of justice, it is apparent that the writing is dispositive.

In Metcalf v. Framingham Parish et al., 128 Mass., 370-374, Gray, Chief Justice, remarks: “Where the reading of the whole will produces the conviction that the testator must necessarily have intended an interest to have been given which is not bequeathed by express and formal words, the court must supply the defect by implication, and so mold the language of the testator as to carry into effect, as far as possible, the intention which it is of the opinion that he has in the whole will sufficiently declared.”

In Bayley v. Bailey, 5 Cush., 258, there was an instrument in question which was in the following terms: “It is my wish that the will that I made be destroyed, and my estate settled according to law.”

In reference to the contention that the paper was not testamentary, and, therefore, not a will, Chief Justice Shaw said: “If the first clause in the writing stood alone, ‘it is my wish, that the will I made shall be destroyed/ there would be some force in this argument; but the other clause we think is more decisive, ‘that my estate be settled according to law.’ ” “It was a present declaration — ‘it is my wish now;’ and it was made by one, whose declaration of purpose, in the form required by law, was conclusive. It looked to the event of his death, to take its effect, and'to have its operation.”

So, here, the appointment of the executor “to settle up all property, both personal and real,” was a definitive declaration that Mrs. Moon, looking to the event of her death, desired her executor to divide up the estate between the persons indicated in the second item.

In Brenchley v. Lynn, 2 Rob. Ecc., 441, 468, it is said: “If a man by will declares he dies intestate, and that his property shall go as in case of intestacy, such paper does not constitute an intestacy but a bequest of the property personae designatae — designated by the statute, as it might be by any other description. The property in the present instance goes not in virtue of the statute, but in virtue of the will.”

Nor do we think that the cases of Crane v. Doty’s Exrs., 1 Ohio St., 282, and Bane v. Wick, 14 Ohio St., 508, which are much relied upon by counsel, are in, conflict with the view we have taken. In the will in Crane v. Doty, there was no residuary clause, and after the payment of the debts and specific bequests there remained real and personal property not expressly disposed of by the will. There was a bequest to one of the testator’s daughters in which it was stated: “It is my will she shall have $200.00 more and her note, for that she has already had, and no more of my estate.” The court held that a testator cannot by words of exclusion used in his will disinherit one of his lawful heirs in respect to property not disposed of by his will, and that such words cannot be used to control the course of descent so as to carry the property to other heirs.

The same principle was applied in Bane v. Wick, in which it is declared that as to the devised property he is a testator and as to that not so disposed of, an intestate. This principle has been applied in many other cases.

It will be observed that the question disposed of in those cases related to property which it was admitted had not been disposed of by terms of the will.

The question here is whether the instrument in question disposed of any property at all, it being necessarily conceded that if the instrument is dis-positive, the entire estate of the testatrix passed.

We think the decree of the circuit court which provided, specifically, for the disposition of the estate of Mrs. Moon to the persons named in the decree was correct and in keeping with the will of the testatrix, and it will be affirmed.

Judgment affirmed.

Shauck, C. J., Donahue, Wanamaker, Newman and Wilkin, JJ., concur.  