
    CONSTRUCTION OF WILL AS TO DEVISE TO WIFE.
    Common Pleas Court of Clinton County.
    Mary E. McCartney v. Mason Moon. 
    
    Decided, March, 1906.
    
      Wills — Devise to Wife for Benefit of Herself and Children — Devise Limited to Her Widowhood — Wife Remarries — Devise Inures for Benefit of Children.
    
    Testator disposed of his real estate in the following language: “I further desire that all my real estate shall be given to my wife for her own proper use and benefit of my children, as long' as she remains my widow.” Held:
    
    Having elected to take under the will the widow, by reason of her subsequent re-marriage, terminated all her rights and interests in the real estate of her former husband, and said real estate inured for the benefit of his children.
    
      
       Affirmed by the Circuit Court without report, April 10, 1906; affirmed by the Supreme Court without report, June 25, 1906.
    
   Kyle, J.

The only question presented in this ease, under the former rulings and issues, to be considered, is the construction to be given the will of Robert Moon.

In the construction of the will, the governing rule is to ascertain and carry out the intent of the testator.

If the will has-been made in plain and ordinary language and has a clear meaning, and the construction of the language used expresses clearly the intent of the testator, there is no occasion for a court to consider' the surrounding circumstances, for the purpose of giving such will another and different meaning.

If the intent and purpose of the testator is expressed in plain and ordinary language, 'with only one meaning, to hear testimony for the purpose of modifying and changing such intention would be only an attempt to make a new and different will from that made by the testator.

Tailing such view in considering the will of Robert Moon, has it a clear and well defined meaning upon its face?

In the first item, the testator after directing the payment of his debts and funeral expenses out of his personal estate proceeds then to dispose of all of his real estate, to a certain extent in the following language: “I further desire that all my real estate shall be given to my wife for her own proper use and benefit of my children, as long as she remains my widow. ’ ’

It would seem to me there is no doubt about the intent or legal meaning of the language used. The testator intended and directed that all of his real estate should be held by his wife for her use and the benefit of his children so long as she would remain his widow.

It has been' held that such a limitation, namely, limiting it to -the widowhood of his former wife' is a valid one, and also seems to me to be a reasonable one.

The testator could well suppose that if his widow should intermarry she would better her condition and be provided for by. her husband, and in such event his real estate would inure to the benefit of his children.

.1 do not see how the surrounding circumstances could throw any light upon the plain intent and purpose of the testator. If such evidence had been received, and such item had been held to have vested in the widow the fee simple estate, it would have defeated, in my judgment, the plain and manifest meaning of the testator, and defeated his purpose.

It is claimed that the presumption of the law Is against a partial intestacy, and of two modes of interpreting a will that one is preferred which will prevent either total or partial intestacy.

This argument assumes that two interpretations could be placed upon this will, a proposition which is not conceded. The argument used is that all of the real estate is not disposed of in the second item of the will, yet if the interpretation were given that the first item of the will vested in the wife a fee simple title of all the real estate of the testator, except the tract disposed of in the second item of the will, even then the testator would die intestate as to a part of his property, so far as the face of the will is concerned, for it appears that the testator directed that all his just debts and funeral expenses be paid out of his personal estate. This assumes that the testator had personal estate, but it does not dispose of such personal estate as might not be applied to the payment of debts, and as to such personal property the testator would die intestate.

But there appears upon the face of the will a good reason why the tract of land disposed of in the second item should be directed to be sold and the proceeds divided. There would seem to have been an inequality, perhaps by way of advancement among the children, and therefore for the purpose of correcting such inequality the tract in the second item of the will was directed to be disposed of and the proceeds divided share and share alike, excepting $100 to be deducted from ‘Ama'cy’s share.

The third item of the will directs, independently, the disposition of the insurance policy, and it might be with reason said that the inequality between the children was made by a sale of land under the second item of the will, rather than out of the insurance policy, because there might be some doubt as to its collection.

Holding these views, it is my opinion that the widow of Robert Moon, having elected to take under the will, by reason of her marriage terminated all her rights and interests in the real estate of her former husband, deceased, and that it inured to the benefit of his children.  