
    William Shaw and David Campbell v. David Hoard and others.
    A testator devised Ms real estate to Ms wife and daughter, and directed that, on the death of either, the survivor should have the whole estate, and that if both should die without issue, it should be given to his wife’s brother. The widow of the testator died, leaving issue by a second marriage. Afterward, the daughter died without issue, leaving the issue of such second marriage of the widow, and her brother named in the will, surviving her. Held, that the surviving issue of the wife of the testator is entitled to the estate under the will, to the exclusion of the brothers and sisters of the testator as Ms heirs at law, and his wife’s brother named in the will.
    Error to the court of common pleas of Medina county. Reserved in the district court.
    *The defendants in error, David Hoard and others, on the [228 12th of January, 1866, filed their petition in the court of common pleas of Medina county, against William Shaw, one of the plaintiffs in error, for the recovery of the possession of one hundred acres of land, and for the sum of two hundred dollars damages.
    On the 25th of January, 1866, William Shaw filed his answer, stating that he, as the guardian of one Carrie A. Brown, was in possession of the premises described in the’petition, but denied each of the other allegations therein alleged.
    On the 20th of February, 1866, David Campbell, one of the plaintiffs in error, filed a motion to he made a party defendant, which was granted; and on the same day, Campbell filed his answer, in which he prays judgment against the defendants in error and William Shaw, for costs, and against Shaw for the recovery of the possession of the land, and for two hundred dollars damages.
    On the same day, the defendants in error filed their reply, denying that either Carrie A. Brown or David Campbell had any title to the premises.
    The case was submitted to the court on an agreed statement of facts, and the court decided that the defendants in error were the owners of the land described in their petition, in fee simple, and gave judgment accordingly; to which ruling of the court the plaintiffs in error excepted.
    The agreed statement of facts shows that, on December 21,1852, Delonzo Hoard made his will, and that, shortly afterward (December 25, 1852), he departed this life, seized of the real estate which the defendants in error and the plaintiffs in error claim; that the testator left surviving him his widow, Mary Ann Hoard, and an only daughter, Barbara Ann Hoard; that the widow elected to take the provision made for her by the will; that, after the death of the testator, his widow intermarried with one John Brown, by whom she had issue, Carrie A. Brown, who is still living, and who is the ward of William Shaw; that said Mary Ann Brown died July 1, 1859, leaving surviving her Barbara Ann Hoard and Carrie A. Brown ; that Barbara Ann Hoard died without issue, March 1, 1865, unmarried and intestate; that Barbara Ann occupied the 229] *whole of said premises, from the death of her mother, Mary Ann until her own death; that William Shaw is the legally appointed and qualified guardian of Carrie A. Brown, and that after the death of Barbara Ann, he, as guardian of Carrie A. Brown, took possession of the land, and has occupied it over since; that plaintiff in error, David Campbell, is now living and claims the land; that the items in the will, relating to this case, are items 2 and 4, which are as follows, to wit:
    “ Item 2. I give and bequeath unto my said wife and daughter all the real estate of which I may be seized at the time of my death, to each one-half.”
    “Item 4. On the death of either my wife or daughter, then the survivor shall have all the property left them by me ; and if both die without leaving any heirs of their body, then, and in that case, said property shall be given to my wife’s brother, David Campbell.”
    The defendants in error, being the brothers and sisters of the testator, are his heirs at law.
    The plaintiffs in error filed their petition in error in the district court to reverse the judgment of the common pleas. On motion of the plaintiffs in error, the case was reserved in the district court for decision in this court.
    
      Davis & Walker, and S. Humphreville, for William Shaw, plaintiff in error:
    The intention of the testator must have effect.
    To ascertain that intention the whole will must be taken together.
    Even where one part of a will is repugnant to another, or is capable of a twofold construction, that which appears to be most consistent and in harmony with the general intention of the testator, as ascertained from other parts of the will, should be approved.. And where the intention of the testator is incorrectly expressed,, the court will effectuate it by supplying the necessary words. 2 Paige, 122; 11 Ves. 148; 1 Paige, 343; 1 Jarm. on Wills, ch. 17, sec. 1; Swinburn on Wills, 10; 4 Ohio St. 383; 6 Pet. 29; Doug. 322 ; 1 Black, 672 ; Bla. Com. 499, 381.
    * Applying these rules of construction, we claim: [230
    1. That it was the general intention of the testator to provide for his widow, Mary Ann Hoard, and his only child, Barbara Ann Hoard, and their issue.
    2. That it was equally the intention of the testator that no part of his personal property or real estate should pass to or become-vested in his brothers and sisters or their issue.
    Item 2, modified and restrained by item 4, gives to the donees in-common an estate tail in general in the land in question; that is, the said donees received what was termed at common law, a fee-conditional, restrained to the heirs of their body, now termed fee tail. 2 Bla. Com. 113; 1 Cruise Dig. 78, sec. 13; 4 Kent’s Com. 11; 2 Jarm. on Wills, 171, et seq.
    The statute has restricted entailments of real estate, but. in so-doing has not prohibited entails, but merely limited the limitation of an estate tail. S. & C. 550; 12 Ohio, 390.
    See the following cases: Anderson v. Jackson, 16 Johns. 382; Lion v. Burtiss, 20 Johns. 483; Wilker v. Lion, 2 Cowen, 333; Id. 393; Lott and Wife v. Wycoff, 1 Barb. 565; 2 Comst. 355.
    The devisees, Mary Ann and Barbara Ann, took the estate tail with cross-remainders by express terms, and, on the failure of either’s issue, the other or her issue takes the whole. 4 Kent’s Com. 201. David Campbell and the defendants in error are cut off by-reason of the devisee, Mary Ann, leaving issue of her body surviving-both devisees, and by virtue of the effect given to the will by-statute. 10 Ohio, 41.
    The following authorities are in point: Wright v. Holford, Cowp. 34; Phipard v. Mansfield, Cowp. 797; Atherton v. Pye, 4 D. & E. 710; 2 Jarm. on Wills, secs. 457 — 460; 462, 465-467, 469, 475; 1 Hilliard’s Abr., secs. 48-52 ; 6 Cruise Dig. 380, sec. 26-29, 38-41, 44, 45; 2 U. S. Dig. 76, sec. 141, p. 77, secs. 159-161, p. 89, secs. 333, 340, 341; Hawley v. Northampton, 8 Mass. 3; 3 Gill & Johns. 199; 3 Serg. & Rawle, 470, 487; 1 Mason, 224; 2 Bailey; 445; 2 Hilliard’» Abr. 49, note; Holmes v. Meynell, Raymond, 453; Pollexfen, 425; Jackson v. Strong, 1 Hall, 1; 2 Abbott’s Dig. 461, sec. 102.
    Carrie A. Brown, the issue of Mary Ann Hoard by John Brown, '281] ^surviving both devisees, is, by guardian, lawfully in possession of the land in question.
    
      R. A. Harrison, H. B. Wilson, and N. H. Bostwick, for David Campbell, plaintiff in error:
    1. The testator intended that no part of his personal property or real estate should pass to and be vested in his brothers and sisters or their issue.
    2. The contingencies upon which David Campbell was to take the estate, have happened; both the first donees (Mary Ann and Barbara Ann Hoard) died without leaving any heir of their body, ■within the meaning of the testator:
    
    (1.) The testator did not employ the words “ heirs of their body” ■in an unrestricted sense.
    (2.) The testator not only excluded Barbara Ann from his mind, <xs an heir of the body of his wife, in making the stipulation on that subject which he did, but he also excluded any child which his widow might have by a second marriage. If he had an heir of the body of his wife in contemplation at all (which we doubt), it was ■an heir which might be born to her, by him, after the will was executed. It is most unnatural that he should have intended to make provision for a child of his wife, by a second marriage.
    The case of McGennis v. Harris, 7 Jones (N. C.), 213, was very similar to the case at bar.
    The court should not, under any circumstances, construe such a provision, in favor of a child by a second marriage, unless it appears clearly, upon the face of the will, that the testator actually had in view the contingency of such second marriage and intended to provide for a child by such marriage. At least enough can be found in the will to “ avoid a construction leading to such an unusual and unnatural result.”
    3. Mary Ann having died, and the entire estate, under the first clause of item 4 of the will, having passed to Barbara, it will be doing violence to the testator’s intention, and to reason, to hold that when Barbara Ann died, the estate re-vested (so to speak) in .the issue of Mary Ann by a second husband.
    4. Our claim is this: When Mary Ann died, the entire estate, binder the provision in the will, passed to Barbara *Ann; [232 then the only contingency that could defeat David Campbell, was the death of Barbara Ann, leaving an heir of her body.
    There is no argument for defendants in error among the papers.
   Day, C. J.

It is conceded that the defendants in error inherit the estate in controversy, unless its statutory descent is interrupted by the will of Delonzo Hoard, who died seized of the land. The •court below held that they inherited the estate, and rendered a judgment in their favor. The correctness of this' decision depends •upon the construction to be given to the will of the decedent, under whom all the parties claim title.

There is nothing appearing in the will, or the facts agreed upon in the case, that requires the application of any statutory or tech-' nical rule in construing the will, to modify the cardinal principle in the construction of a will, that it must be construed so as to carry •into effect the meaning and intent of the testator expressed in the instrument.

The will was not drawn with technical completeness, but the disposition that the testator intended to make of his estate is clearly discernible from the language he has employed in his testament.

It does not admit of doubt that he devised at least a life estate to his wife and daughter. It would seem to be just as clear that he intended, in case of the death of both his wife and daughter without issue, that, if David Campbell survived them, he should take the property, instead of his brothers and sisters, his present heirs at law. He certainly intended to prefer him over them. Whether hp •did so for a good reason, we do not know, nor is it material that we should, since such is his clearly declared will and purpose.

If he preferred Campbell to the defendants in error, much more •does his preference extend to the issue of his wife and daughter, ,1 since Campbell can take under the will only on default of such issue.

It is also very clear that the testator did not intend that Campbell •should have the property unless “both” his wife %nd daugh- [233 ter should die without leaving issue; for “then, and in that case” ■only, does he give it to him.

Although there are no words in the will expressly giving the estate to the issue of his wife and daughter, it is manifest he intended that their issue should have it after their decease. It would* seem that he regarded it as not to be doubted but that the property would pass to the children of his wife and daughter, if they died' leaving children. He was therefore careful only to direct what disposition should be made of his property in the event that both should die without leaving any heirs of their body.”

. It follows, by clear implication, that he intended to give the-property to the issue of his wife and daughter after their decease, if they left issue surviving them, to the exclusion of all other heirs, and of Campbell even, who is preferred in the will to them.

If the will be construed so as to give effect to the purpose of the-testator, it must defeat the inheritance claimed by the defendants-in error; for, if there were no surviving issue of the wife or daughter, Campbell would take under the provisions of the will; and if it be claimed that he is defeated by the surviving issue of the wife, much more was it the intent of the testator that such issue should* defeat the heirs.

Nor can effect be given to all the language of the will without-defeating the devise to Campbell; for both” the wife and daughter did not die without leaving issue. An heir of the body of one-of them survives.

To give the estate to such issue will do no violence to the language of the will, and will carry into effect the purpose of the testator, clearly implied from the language he has used in the instrument.

It is not necessary to determine what would be the effect of the-will in a state of facts different from those presented in this case, or how the estate in controversy will be affected by it, hereafter, on-the death of any of the parties interested therein.

It would seem that it was the plain intention of the testator, as-reflected by the language of the will, to provide, first of all, for his 234] widow and child during their lives, and then to secure *his-property after their decease to their issue, and in default of such issue, to substitute 'his own devisee for the statutory heirs.

To give effect to this construction of the will, we must hold that Carrie A. Brown, the surviving issue of the wife, is entitled to take-the property under the will, either as a remainder or an executory devise. Upon either construction of the will, as to the whole-estate, or upon one construction as to one-half of the estate, and-4he other as to the other half, the result -will be the same in the present state of the facts — the same person will take the estate.

This result is not affected by the statute of this state■ limiting <entailmcnts, nor by artificial rules of construction that might be .applicable in a different state of facts.

It follows that the judgment of the common pleas must be rewersed.

The case was submitted to the court below on an agreed statement of facts, and is therefore a proper case for this court to pro-ceed in, under the provisions of the code, to render the judgment "that should have been rendered by that court. A judgment will therefore be entered here in favor of the guardian of Carrie A. Brown for the premises in dispute, and for costs against the defendants in error.

Scott, Welch, and White, JJ., concurred'. Brinkerhoee, J., dissented.  