
    DIVESTING OF TITLE THE ISSUE OF A DECEASED CHILD.
    [Circuit Court of Hamilton County.]
    Charles W. Huber v. Joseph T. Carew et al.
    
    Decided, July 20, 1904.
    
      Wills — Testamentary Disposition is Effected, When — Descents—Modifications of the Laio as -to — Divesting Grandchildren of Title.
    
    1. Where a testatrix adopts the course of descent provided by the statute in so far as it coincides with her wishes, and then adds certain modifications for the purpose of carrying out her wishes, a testamentary disposition is made of her property, and her heirs take nothing by descent.
    2. A child of a testatrix so devising her property takes an estate in fee, determinable upon the contingency provided in the will; and where the provision is that a child shall be divested of the fee, in favor of testatrix’s husband, in the event of the death of such child before the death of the husband, the provision will be carried out-, notwithstanding no good reason appears for thus divesting of title the children of the deceased child.
    Giefen, J.; Jelke, P. J., concurs.
    
      
      Affirming Huber v. Carew et al, 2 N. P. — N. S., 81; affirmed by the Supreme Court without report, 74 Ohio State, p. -.
    
   The only question to he determined in this case arises upon the pleading and involves a construction of the last will and testament of Maria L. Cary, which is as follows:

“In view of the uncertainty of life, I, Maria L. Cary, do hereby make and publish this my last will and testament, written with my own hand, this twenty-ninth day of April, 1847, revoking all former wills by me made.
“First. It is my will that all my property and estate, real and personal, however owned, and wherever situated, shall go as the law directs, with the following modifications or changes, viz.:
“First. It is my will, in case either of my children, Martha Louisa or Ella Woodnut, or the one of which I am now enciente (if it shall survive me) shall die before my husband, Samuel F. Cary, then it is my will that the portion of my estate belonging to my child shall pass in'fee to my husband. In case my husband shall survive all my children then it is my will that he shall possess in fee my whole estate.
“Second. If my children, or either of them, shall survive my husband, and yet shall all die without issue, before arriving at majority, then it is my will that the proceeds of my estate shall be forever applied to the establishment and support of a female college, to be located at Pleasant Hill, Hamilton county, Ohio, the estate to vest in such trustees as the Cincinnati Presbytery (new school) may designate, the whole management and control of such institute to be under the direction of said presbytery.
“In testimony whereof, I have hereunto set my hand, this the twenty-ninth day of April, one thousand eight hundred and forty-seven.
“(Signed) Maria L. Cary.”

It is claimed by the plaintiff, by the terms of this will, no disposition was made of the estate and that he acquired title by descent. Counsel in their brief state the proposition as follows:

“The testratrix has declined to avail herself of the privilege of devising her real estate which the law gives to every owner, but has elected to let it pass by descent to her heirs, and having permitted it to pass by descent, she then sought to modify or change the course marked out by the statute. ’ ’

While it is true that the first clause of the will provides that the estate shall go as the law directs, yet it is qualified by the words “with the following modifications or changes,” which appear in the succeeding clauses of the will. The testator evidently used the words “shall go as the law directs” as a form of designating the persons to whom she wished her estate to go, and the quantity that each in the first instance should take, and as a basis for the modifications or changes set forth in the second and third items of the will. She adopted the course of descent provided by statute in so far as it coincided with her wishes and then added such modifications as would fully carry them out.

Tier expressed will that all her property should go as the law directs, with cértain modifications, was a testamentary disposition of the same, and the heirs took nothing by descent. The words, “shall go as the law directs, with,” etc., are but an abbreviated form made use of by testratrix to express her testamentary intent — a borrowing of the provisions of the statute of descent so far as they suited her purpose and beyond that rejecting them. In the case of Crane v. Doty, 1 Ohio St., 279, cited by counsel for plaintiff, there was an attempt made by the testator to disinherit one of his lawful heirs in respect to property not disposed of by his will. In that case, no attempt was made to create any interest or estate in the property involved and hence, not being disposed of by will, it necessarily went according to the statute of descent and contribution.

Counsel in their reference to this case of Crane v. Doty, supra, beg the whole question when they say: “We have already seen that testratrix has made no express devise of her real estate. If a devise can not be implied it follows that her real estate was not disposed of by her will.”

The words “shall go” and “shall pass” are expressly dispositive and the quantum of the estate so given is clearly defined by the reference to the law and the limitations in the succeeding sentence and words, “shall die,” etc., and in fit.

John W. Wolfe and Oulcall & Foraker, for plaintiffs.

Cohen <& Mack, for defendants.

There is nothing here left to implicate, all being express.

The case of Gaskin v. Gaskin, 2 Cowp., 657, is not applicable here because the whole estate is here given by the terms of the will to persons other and in proportions different than provided by law. And the same is to be said of Boisseau v. Aldridge, 32 Va. (5 Leigh), 222.

In this case, the testator, with the statute before her, proceeds to modify its provisions to meet her desire in the premises, and then adopts the whole as her will.

It is further contended that if the children took any estate under the will, it was in fee simple. But the only purpose of testator under the second clause of the will was to divest the child or children of the title in fee in event that they or either of them died before her husband. .No good reason appears why a child leaving issue should thus be divested of title, but the language of the will is plain and unambiguous and must, therefore, be given effect. “TJni in verbis nulla ambiguilas, ibi nulla occurrit voluntatis quaestio.”

We attach no special significance to the word ‘‘belonging” in the second paragraph of the will because whether the child took by descent or by will, the estate belonged to her subject to the contingency therein provided.

We are .of opinion, therefore, that Martha Louisa Iiuber, the mother of the plaintiff, took by devise an estate in fee, determinable upon the contingency of her death before that of her father, Samuel F. Cary.  