
    Wells et al. v. Gatch, Admr., et al.
    
      Wills — Bequest of income from money to wife during life— Principal to revert to children or their next nearest heirs— Title not vested in children at testator’s death — Interest not acquired by daughter who died before widow — Or by her husband who survived widow — “Heirs” construed to mean “children,” when.
    
    1. Will devising property to testator’s wife for life and “at her death principal to revert to my children or their next nearest heirs” held to manifest intention, in view of Sections 8573 and 8574, General Code, that title to property should not vest in his children at his death, and hence neither daughter who died before the widow nor her husband who survived the widow ever acquired any interest in the property; “next nearest heirs” referring solely to testator’s children.
    2. Term “heirs” should be held to mean “children,” where intention of testator so indicates.
    (Decided December 28, 1925.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. John Weld Peck, for plaintiffs in error.
    
      Messrs. Gatch, McLaughlin & Gatch, for Lewis N. Gatch, Administrator.
    
      Mr. Henry Baer, for defendant in error George Baer.
   Cushing, J.

Samuel Wells died in 1899, survived by Adelia S. Wells, his wife, Florence A. Wells, S. Percy Wells, and Mabel Wells, his children. He left a will that is the subject of this litigation. Mabel Wells married George Baer, and died in 1905. She did not leave any children. Adelia S. Wells died in 1924.

The question in this case is what, if any, interest George Baer has in the property bequeathed by Samuel Wells by item 3 of his will:

“Item Third. I give to my wife, Adelia, a life interest in the sum of twenty-five thousand ($25,000) dollars, the interest on said amount to go to her during her natural life, and at her death the principal to revert to my children or their next nearest heirs. Should none of my children, or their legal heirs survive my said wife,. Adelia, then said sum herein devised shall descend' to my sisters, Maria E. Merrick and Fanny Dinsmore. These bequests to my wife are in lieu of dower. I direct that the sum of money herein devised to my wife for life be invested, by my executor in safe and trustworthy securities, as his best judgment may dictate.”

The will gave Adelia S. Wells the property for her life, limiting her interest in it to the right to use the interest therefrom, and then provides that, “at her death the principal to revert to my children or their next nearest heirs.” It was not his intention that the title to the property should vest in his children at his death, else why the provision that the principal was to revert to" his children? If this is the correct interpretation of the language of the will, Mabel Wells Baer never had any title to or interest in the property, and George Baer could not inherit an interest that his wife did not have, unless he was her heir within the meaning of the provision of the will, “revert to my children or their next nearest heirs. ’ ’

Did the testator use the words “heirs,” “legal heirs,” and “next nearest heirs,” in their technical or in their flexible sense?

When the intention of the testator so indicates, ,the term “heirs” should be held to mean children, and not to have been used in its technical sense to designate any one capable of inheriting. Cultice v. Mills, 97 Ohio St., 112, 119 N. E., 200; Jones v. Lloyd, 33 Ohio St., 572; Weston v. Weston, 38 Ohio St., 473; and Durfee v. MacNeil, 58 Ohio St., 238, 50 N. E., 721.

The language, “their next nearest heirs,” is unusual. If we examine the statute of descent and distribution (Sections 8573 and 8574, General Code), children are the only ones named in the class first or nearest, and next to the ancestor.

The will provides that should “none of my children, or their legal heirs survive my said wife, ’ ’ etc.. Here again children are referred to, and the term legal heirs evidently was used to indicate their children, if any, for in the absence of next nearest heirs the property was given to those who, under certain circumstances, might have inherited it from said children.

It is clear that the title to the property did not vest in the children at the death of the testator, that the purpose and intent of the testator, in using the language “next nearest heirs” and “legal heirs,” was to designate “children,” and, as but two of his children, survived Adelia S. Wells, they took the property when it reverted to “my children.” In this view of the case, George Baer did not come within the class designated in the will as “next nearest heirs.”

The judgment of the court below will be reversed, and the judgment entered here in favor of the plaintiffs in error.

Judgment reversed.

Buchwalter, P. J., and Hamilton, J., concur.  