
    Knepper et al. v. Knepper, Executor.
    
      Wills — Construction—Charging devised real estate with subsequent bequests — ¡Witnesses—■Privileged communications — Section 11494, General Code — Attorney signs will as witness — Privilege waived and consent given, when — Competency of attorney’s testimony.
    
    1. The intention of a testator to charge legacies on real estate specifically devised must clearly appear or be clearly deducible from the language of the will. But it is not necessary that the charge shall be made in express terms or that any particular language be used. The intention to charge will be given effect when it clearly appears from the provisions of the instrument.
    2. Section 11494, General Code, disqualifies an attorney from testifying “concerning a communication made to him by his client in that relation, or his advice to his client,” except by the express consent of the client, and when a testator procures his attorney as a subscribing witness to his will he by that act expressly consents that the attorney may testify as fully as any other subscribing witness touching the capacity of the testator or any other fact affecting the validity of the will. The object of requesting a person to witness a will is to assure the legal execution of the will and preserve the evidence thereof.
    3. But the testimony of an attorney is not competent to vary the terms of a written instrument prepared by him as such, and in a proceeding to construe a will the attorney who wrote the will, and with whom the testator consulted concerning it, is not competent to testify concerning a communication made to him by his client touching his estate, the objects of his bounty or the meaning and effect of provisions contained in the will.
    (No. 16875
    Decided November 22, 1921.)
    Error to the Court of Appeals of Williams county.
    This was a proceeding brought by Albert F. Knepper, as one of the executors of the will of William F. Knepper, deceased, to procure the construction of the will of said deceased.
    The petition set forth that the plaintiff and the defendant, Guy H. Knepper, were duly appointed executors of said last will and testament of the deceased, and contains a copy of the will which is as follows:
    “In the Name of the Benevolent Father of All. Amen.
    “I, William M. Knepper, of the Village of Montpelier, County of Williams, and State of Ohio, being about Seventy-Eight years of age, and of sound and disposing mind and memory do make, publish and declare this my last Will and Testament, hereby revoking and annulling any and all Will or Wills by me made heretofore:
    “First: My will is that all my just debts and funeral expenses be paid out of my estate as soon after my decease as shall be found convenient.
    “Second: I give, devise and bequeath to my son Albert F. Knepper, the East one-half (£) of the northwest one-quarter (Jr) of Section Number Thirty-five (35) Town Seven (7) North of Range Two East, Superior Township, Williams County, Ohio, being eighty acres of land more or less.
    “Third: I give, devise and bequeath to my son Guy H. Knepper, the West half of the northwest quarter (J) of Section Thirty-five (35) Town Seven (7) North of Range Two (2) East, Superior Township, Williams County, Ohio, conditioned on the said Guy H. Knepper paying Four Hundred ($400.00) Dollars to my said son Albert F. Knep-per to balance the value of the said above described two tracts of land.
    “Fourth: I give, devise and bequeath to my said sons Albert F. Knepper and Guy H. Knepper all of the residue of my property real, personal and mixed, except one Bureau made of walnut lumber and finely finished, which is hereinafter bequeathed to my daughter, Ida A. Brannan. •
    “Fifth: I give, devise and bequeath to my daughter Ida A. Brannan, the sum of Twenty-Six Hundred ($2,600.00) Dollars and one walnut Bureau hereinbefore described in Item Four of this Will and Testament, the said bequest of Twenty-Six Hundred ($2,600.00) Dollars to be paid by my Executors within one year after my decease.
    “Sixth: I give, devise and bequeath to my grand-daughter Cíela R. Scott, the sum of Nine Hundred ($900.00) Dollars to be paid by my said Executors, on the date my said grand-daughter becomes of legal age.
    “Seventh: I give, devise and bequeath to my grand-son Blann Scott, the sum of Nine Hundred ($900.00) Dollars to be paid by my Executors, when my said grand-son becomes of legal age.
    “Eight: I give, devise and bequeath to my grand-daughter Demma Scott, the sum of Nine Hundred ($900.00) Dollars to be paid by my Executors, when my said grand-daughter becomes of legal age.
    “Nine: I hereby nominate and appoint my said sons, Albert F. Knepper and Guy H. Knepper, executors of this my last Will and Testament, and authorize my said executors to sell all or any of my real or personal property, if it be by them deemed necessary and to give good and sufficient deeds to the purchasers thereof, the same as I myself might do if alive.
    “In testimony whereof, I have set my hand to this my last Will and Testament, at Montpelier, this Twenty-Sixth day of September,' in the year of our Lord, One Thousand Nine Hundred and Thirteen-
    “W. M. Knepper.”
    The petition avers that the said will was duly admitted to probate in the probate court of Williams county and that the plaintiff is in doubt as to the true construction of said will, especially as to the Fourth, Fifth, Sixth, Seventh and Eighth Items thereof.
    The petition further alleges that the testator at the time of the execution of his will was the owner of a certain piece of real estate in Montpelier, Ohio, and of certain personal property of the value of about $4,000, which was more than sufficient to pay the several legacies mentioned in the will, and that afterwards about the 21st of July, 1917, the said decedent appears to have conveyed said lot for the consideration of one dollar to said Guy H. Knepper, one of the defendants, and for no other or further consideration.
    The petition further averred that at that time the testator was both mentally and physically unable to comprehend the nature and effect of said act and that the deed amounts to a fraud on all of the beneficiaries of the estate and should be set aside.
    Plaintiff further averred that at the death of the testator no part of -said personal property of said, testator remained in his possession or ownership. The plaintiff desires the instruction of the court as to whether the several legacies provided for in the items named constitute and are each a specific lien upon the real estate described in Items Second and Third of the will.
    The legatees of the deceased were made parties to the proceeding' and certain advancements are averred to have been made by the testator in his lifetime to certain named legatees.
    The petition prayed for the direction and judgment of the court in regard to the true construction of the will and that the deed referred to should be set aside and held for naught.
    Guy H. Knepper in his answer, avers that the lot referred to was conveyed to him for good and valuable consideration and that his father had the mental capacity to make, execute and deliver the deed.
    He also files an answer as one of the executors of the will of'his father, in which he avers that' the legacies to the different beneficiaries' named in the will were intended to. be and in law should be paid out of the estate, both real and personal of the decedent, and if there is not sufficient personal property to pay such legacies that the plaintiff and this defendant each out of the property devised and bequeathed to them be required to advance an equal amount to said legacies. He avers that he himself out of his own personal property has paid to the different beneficiaries and to each of them 45 per. cent, of the legacies bequeathed to them; that the personal estate will pay ten per cent.; that he has advanced all and more than the amount which he is required to advance to pay said legacies; and that the plaintiff should be required to pay the remaining part.
    The different beneficiaries filed answers alleging that the legacies are payable out of any property that was owned by said decedent at the date of his. death.
    It is conceded by both parties that the issue concerning the lot deeded by the decedent to his son, Guy, has been resolved in favor of the validity of the deed.
    On the trial the court of common pleas decreed that the legacies were not a lien on the real estate devised to the two sons.
    The cause was appealed to the court of appeals, which entered a like decree, and error is prosecuted here to reverse that decree.
    
      Messrs. Newcomer & Gebhard, for plaintiffs in error.
    
      Mr. Edward Gaudern and Mr. Charles E. Scott, for defendant in error.
   Johnson, J.

The issue relating to the deed made by the testator to his son, Guy H. Knepper, for the lot in Montpelier was resolved in favor of its validity. All parties now agree that the question as to that deed has no application to this proceeding in error. The sole question involved is whether the land devised to the two sons by Items Two and Three of the will is charged with the payment of the legacies made in the subsequent items.

There was considerable testimony introduced at the trial concerning the condition and extent of the estate of the testator at the time of the making of the will.

Plaintiffs in error contend that the court erred in admitting the testimony of the attorney who drew the will, and who testified to statements made by the testator to him at that time, touching the subject of his estate, and concerning his children and grandchildren. The- objection and exception by the plaintiffs in error is founded upon the provisions of Section 11494, General Code. The pertinent part of that section reads:

“The following persons shall not testify in certain respects:
“An attorney, concerning a communication made to him by his client in that relation, or his advice to his client; * * * the attorney * * * may testify by express consent of the client * * * and if the client * * * voluntarily testifies, the attorney * * * may be compelled to testify on the same subject.”

In the very recent case of Swetland v. Miles, 101 Ohio St., 501, it was held .that the section referred to clearly and conclusively disqualifies an attorney from testifying concerning a communication made to him by his client in that relation or his advice to his client, and that the death of the client did not change or abrogate the application of the rule.

In that case it did not appear that the attorney was a witness to the will itself. When the attorney is a witness to the will itself, a different question is presented. When a testator procures his attorney as a subscribing witness to his will he by that act expressly consents that the attorney may testify.as fully as any other subscribing witness as to the capacity of the testator or any other fact affecting the validity of the will. The only object that the testator has in requesting any person to witness his will is to assure the legal execution of the will and to preserve the evidence thereof. By making such request, the testator thereby waives the exemption contained in Section. 11494, General Code. But there is no such presumption as to the waiver of the incompetence of the attorney to testify to facts which vary the terms of a written instrument prepared by him as such attorney, and in a proceeding to construe a will the attorney who wrote the will and with whom the testator consulted concerning it is not competent to testify concerning a communication made to him by his client touching his estate, the objects of his bounty or the meaning or effect of provisions contained in the will.

Now, as to the will itself. It is conceded that the testator owned a farm of 160 acres in Williams county at the time of his death; that he had no other real estate and that the- personal estate was less than sufficient to pay the specific legacies. After a careful reading of the record we have not been able to find from the competent evidence in the case that the testator when he made the will had, or supposed he had, sufficient property in addition to the farm to pay the legacies. By the second item of the will he gave to his son Albert the east half of the 160 acres, and by the Ihird item he gave to his son Guy the west half thereof, and provided that Guy was to pay to his brother Albert $400 “to balance the value of the said above described two tracts of land.” Then follows the Fourth Item: “I give, devise and bequeath to my said sons, Albert F. Knepper and Guy H. Knepper all of the residue of my property real, personal and mixed, except one Bureau made of walnut lumber and finely finished, which is hereinafter bequeathed to my daughter, Ida A. Brannan.”

Then by the Fifth, Sixth, Seventh and Eighth Items he gives to his daughter Ida $2600, to his granddaughter Clela R. Scott, $900, to his grandson Blann Scott, $900, to his granddaughter Demma Scott, $900, and provides that the $2600 to the daughter shall be “paid by my executors within one year after my decease,” and in the several bequests to the grandchildren he provides that the sum shall be paid by said executors on the date of the grandchild becoming of legal age in each instance.

Did the two sons, Albert and Guy, take the property devised and bequeathed to them charged with the payment of the legacies to the daughter and grandchildren ?

It is of course conceded that the cardinal rule of testamentary construction is to ascertain and give effect to the intention of the testator unless he has attempted to make a disposition contrary to law or public policy. And where there are doubtful clauses in the will, the court in determining the meaning that the testator intended it to 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. Moon, Admr., v. Stewart, 87 Ohio St., 349.

This is a salutary rule, because it is seldom that two wills present precisely the same question, and all rules and presumptions must yield to the paramount intention of the testator where that may be ascertained from the language used by him. And the question whether legacies are to be charged on real estate depends on the terms and provisions of the particular will under consideration. All authorities agree (40 Cyc., 2014) that “The intention to charge legacies on real estate must clearly appear or be clearly deducible from the language and dispositions of the will. It is not necessary that the charge shall be made in express terms or that any particular language shall be used. * * * But the court will not construe a will as charging legacies upon real property, and particularly upon real property specifically devised, unless such an intention clearly and satisfactorily appears.”

In the consideration of a question such as is presented here, courts and counsel uniformly begin with the full concession that the intention of the testator must control and that that intention must be gathered from the language of the will itself where that is possible. When different views are entertained concerning the language it naturally follows that there is a search for authorities under which a particular construction may be sustained. The danger is that this may lead to reliance on abstract technical rules in forgetfulness of the wish of the testator and in disregard of the safe and sensible starting, point at which the inquiry began.

Where the intention is not clear, it is proper to consider the condition and extent of the estate, and whether the testator had, or supposed he had, sufficient undisposed of personal or real property to pay all legacies, and, if so, the presumption is that he intended that the legacies should be paid from that property^ As already stated we have not been able to find that the testator when he made the will had sufficient property in addition to the farm to pay the legacies. But in this case, there was no undisposed of estate, real or personal. When the testator came to write the items in which the legacies were given he had already expressly disposed of all his real estate and all of his personal property. By Items Two and Three he had given his sons, Albert and Guy, the farm of 160 acres, and by Item Four he had given to the same two sons, not as executors, but individually and absolutely “all the residue of my property real, personal and mixed,” except the bureau referred to. After having disposed of all his property, as above stated, he proceeded to make the bequests in Items Fifth, Sixth, Seventh and Eighth, in each instance directing that it be paid by the executors. When he made that direction he of course fully realized that after the carrying out of the prior items there would be nothing in the estate and the executors, as executors, would have nothing to apply on the legacies. The only rational conclusion from that situation is that the testator intended to give to the two sons all of his estate absolutely and that they should take the whole estate charged with the payment of the specific legacies to the daughter and the grandchildren.

It will be noted that the legacy to the daughter was to be paid within one year after his decease, and that the legacies to the grandchildren were to be paid to each of them as they severally became “of legal age.” There is no provision that the bequest to the grandchildren should be held in trust for them during the period prior to the time of their becoming of legal age. The provisions are that the amounts shall be paid by the executors to the beneficiaries when they become of age.

The father regarded the west half of the farm as more valuable than the east half, and, therefore, made the provision that the son receiving the west half should pay his brother $400 “to balance' the values.” All the rest of the estate they took equally.

We think it clearly appears from this will that the father after full deliberation concluded to turn over his entire estate to his two sons and to require them to pay their sister $2600, and to the three children of their deceased sister substantially the same amount. This was the plan he had decided upon. This was clearly his purpose and intention. The sons took the estate charged with the accomplishment of that object.

The judgment will be reversed and the cause remanded to the court 'of appeals with instructions to enter a decree in accordance with this view.

Judgment reversed.

Marshall, C. J., Hough, Wanamaker, Robinson, Jones and Matthias, JJ., concur.  