
    DESCENT AND DISTRIBUTION — WILLS—HUSBAND AND WIFE.
    [Cuyahoga (8th) Circuit Court,
    July 25, 1903.]
    Marvin, Winch and Laubie, JJ.
    (Judge Laubie of the Seventh Circuit sitting in place of Judge Hale of the Eighth Circuit.)
    John Coon, Exr., v. William B. DeMoore et al.
    1. Sections 417G and 59G3 Rev. Stat. Construed.
    When the wife dies leaving a will in which no provision is made for her surviving husband, her estate will be treated to him as if she had died intestate within the meaning of Secs. 4176 and 5963 Rev. Stat. In such event the husband will he entitled to a distributive portion of her personal estate as though the wife had died intestate, notwithstanding under a strict construction of the statutes such portion could not be claimed.
    2. Court Cannot Make Wnx — Must Ascertain Meaning and Intention Prom Testator’s Language.
    Courts are without power to make a will, or substitute something else for any of its provisions; hut it is their duty to ascertain the meaning and intention of testator from the language used, and then carry the same into effect if that can be done without violating the words of the will.
    3. Will Construed.
    Where testator who was a beneficiary of certain real estate under the will of her first husband (which interest is admitted by the parties, and held by the court to be personalty), bequeathed all her “interest in fee simple in all my realty wheresoever located” to two persons (naming them), and “all my personalty” to one of the persons named, but without mentioning or making any provision for her second husband who survived her, and it appears that testator was not the owner of any real estate and had no interest in any except as such beneficiary; in such case, the second husband is first entitled to a distributive portion of testator’s entire estate under Sec. 4176 Rev. Stat. as though she had died intestate; and carrying out her evident meaning and intention as ascertained from the will, the persons therein named will take the remaining estate in the portions therein respectively provided.
    Appeal by defendant, V. A. Coon.
    John T. Sullivan, for plaintiff.
    J. S. Grannis, John T. Sullivan, Caskey & Calhoun, for defendants.
   MARVIN, J.

The ease of John Coon, executor, against William B. DeMoore and others is here on appeal, and the purpose of the suit is to determine the rights of the several defendants in the property of which Ruth DeMoore was seized at the time of her death.

William B. DeMoore, since the suit was brought, has died, and one Snyder has been appointed as executor of his will, and he is made a party in the ease, the case being revived in his name in place of that of William B. DeMoore.

Ruth DeMoore was the wife of William B. DeMoore. She died in this county and left a will, a codicil of which is the matter to be considered here, for it is under this codicil that the rights of the parties are to be determined in connection with the will. It reads as follows:

“I hereby give and bequeath to Mrs. Verona Coon one-half interest in fee simple in all my realty wheresoever located of which I may die possessed, and the other half of said realty I give, devise and bequeath to Mrs. Julia Stevens, wife of A. J. Stevens, of Cleveland. I also give all my personalty, including, jewelry,, diamonds, clothing and furniture of which I may die possessed of to said Julia Stevens.”

In the will of Ruth DeMoore she nowhere mentions her husband.” She made no provision for him.

Section 4176 Rev. Stat provides for the distribution of personal property where one dies intestate, and it provides thatjme dying intestate, leaving a widow or widower, that said widow or widower shall be entitled to have distributed to him one-half of the first $400 of the personalty which shall be left after the payment of debts, and one-third of all the balance.

Section 5963 Rev. Slat, provides that where one shall die testate, owning personal property, and leaving a will in which provision is made for the widow or widower, such widow or widower, the relict of the testator, may elect whether to take the provisions of the will or the distributive portion to which said relict would be entitled in case the testator had died intestate.

It, of course, is conceded that mider the exact language of these statutes, this widower would be- entitled to no distributive portion, because the distributive portion is provided for only when one dies intestate or when a will is left in which some provision is made for the relict widow or widower. In this case neither of these two facts existed. The widow did not die intestate, and she did not die leaving any provision in her will for her surviving hüsband.

The Supreme Court of our state, in Doyle v. Doyle, 50 Ohio St. 330 [34 N. E. Rep. 166], have construed those statutes, and have said that the estate, when one dies leaving a will in which no provision is made for the surviving widow or widower, the estate in such case is to be treated as though the party had died intestate. Each of the sections which provides for a widow, provides, in the same connection, for the widower, and reads that when one shall die leaving a widow or widower, as in the case of Doyle v. Doyle, supra, it is provided that in whatever personal estate the testator (I say testator because I think it is the right word for either sex) leaves, the husband is entitled to a distributive portion as though the wife-had died intestate.

What was that personal property of which she was seized at the time of her death ?

She had certain moneys, certain chattels, and she had whatever came to her by the third item 6f the will of Robert M. Walduck, deceased. She, at the time of his death, was left his widow, and subsequently married William DeMoore.

The third item of the will of Robert M. Walduck provides: and after October 1, 1875, at an annual rent of thirty-nine hundred dollars, payable monthly. Also all the rest, residue and remainder of any other real and personal estate of what kind of nature soever, or wheresoever situated, other than that hereinbefore bequeathed in and by the second clause of this, my will, of which I may die seized ór possessed, unto David M. Walduck, as my executor and trustee as hereinafter named, to have and to hold the same upon trust, to take charge of, ■manage, collect and receive the rents and profits thereof, and out of the same to pay taxes, assessments, interest and insurance or other charges in relation thereto, and also pay all or any just debts — funeral and testamentary expenses, appertaining' or connected with the management of said estate, for,' during and until my said executor and trustee in his judgment shall deem it safe and for the interest of the cestui que trusts hereinafter named, to have a sale of said trust estate without sacrifice, and during such period until such disposition and sale of said trust property, my said trustee, or his successor after he shall have made said collections and payments as herein last above stated, he shall pay out of the net balance, if any remaining in his possession, the sum of seventy dollars per month to my dear wife, Ruth Walduck, for and during the present, period until the said property shall be sold as hereinbefore mentioned; and for and during the like period after the payment of the said seventy dollars per month out of said fund, the net balance of said revenue shall be equally divided and paid over by my said trustee to” certain parties named in this item of the will.

“I give, devise and bequeath-all that certain house and lot situate, lying and being at the northeasterly corner of Sixth avenue and Eighth street in the city of New York, being the same property as mentioned and bounded in a certain deed made and executed by Philo T. Ruggles, master in chancery, to me, the said Robert M. Walduck, bearing date March 24, 1847, and recorded in the office of the register of the city and county of New York in liber 48 of conveyances, page 161, March 24, 1847; the dimensions whereof being twenty-four feet three inches in width by seventy-seven feet seven inches in length, more or less, and which premises is now subject to two separate mortgages amounting together to the sum of fifteen thousand five hundred dollars as subsisting liens therein, said property being also subject to a certain lease to James W. Scott and John W. Earle for the unexpired term of eight years from

This property had not been sold by that trustee when Mrs. (Wal-duck) DeMoore died.

It is conceded by counsel representing all the parties here, and would be so if it were not conceded, that whatever interest Mrs. DeMoore had in this real estate described in the will "of Robert M. Walduck, was personal as to her. She had no title to any real estate. Hence all the personal property, other than this interest in this real estate — all this interest was as to her personal. That being true, the surviving husband was entitled to distribution out of the entire estate

But there remains still this question.

It should be said that when Mrs. DeMoore died she had no interest in any real estate in the world except so far as the evidence shows, whatever interest she had in this New York property. Yet, by her will, she says:

“I hereby give and bequeath to Mrs. Verona Coon one-half interest in fee simple in all my realty wheresoever located of which I may die possessed, and the other half of said realty I give, devise and bequeath to Mrs. Julia Stevens, wife of A. J. Stevens, of Cleveland. I also give all my personalty, including jewelry, diamonds, clothing and furniture of which I may die possessed of to said Julia Stevens.”

Now it is said on behalf of Julia Stevens 'that since Sirs. DeMoore left nothing but personal property, her interest in the New York property being personal, there was nothing for Airs. Coon; Mrs. DeMoore had no realty and as she gave all her personal property Jo Mrs. Stevens, Mrs. Coon was left without anything. If this language of the will is to be held to this strictly technical meaning, that result would follow.

It is evident that Mrs. DeMoore, when she executed this will, meant something when she used this word "bequeath” applicable to personalty and real estate. When she bequeathed this to Mrs. Coon, she meant something to give her. It could mean nothing if by the construction of this codicil it is to be said that her interest in that properly in New York was treated by her as personalty. It was, technically, personalty.

Iler husband was entitled to distribution in it as personalty.

The first consideration in the construction of wills is to give such construction as will carry out the intention of the testator, if that can be done without violating the words of the will.

It is said that Airs. Coon can get nothing, for this woman had no real estate; she had no realty; her estate in this property was not real; that she only had personalty. It is true that’Mrs. DeMoore had no fee title; all the interest she had was an equitable one.

Can it be doubted that she meant by this item in her will, that whatever interest she had in this realty should go one-half to Mrs. Stevens and one-half to Mrs. Coon? The language'in which Mrs. Coon’s name is mentioned would be idle, would be meaningless, unless this woman had this in her mind.

Without going further into this, the authorities are numerous that in the construction of a will one must look into the meaning. Another is, that you must not make a will for the testator, or substitute anything, but if you know just what the testator meant and intended to do and can ascertain that from the language of the will, you can cany,that into effect.

Numerous authorities have been examined, but we have not had time to write out an extensive opinion in this case.

The authorities are so well collected in Underhill, Wills, and especially in Chap. 14, and the authorities so fully cited there, that we think, in that chapter arid the authorities there cited, and especially in Sec. B19, as I recollect it, that they fully justify the conclusion at which we have arrived.

There is not a particle of doubt in my mind, or in that of any of the court, that the authorities authorize us to make this finding: That Snyder, the executor of Wm._B. DeMoore, take the distribution to which DeMoore would have been entitled if his wife had died intestate, including his interest in this will; that Mrs. Coon take one-half and Mrs. Stevens one-half, together with all the other personal property, and the decree will be drawn accordingly.  