
    Cope v. Cope.
    Wills— When void for uncertainty.
    
    Where the provisions of a will in each and all of its items are, when considered as an entirety, so obscure that, with the aid of all the light that can be shed on it by the extraneous circumstances, no definite idea can be formed of the intention of the testator in any of the dispositions he has attempted to make, it should be held void for uncertainty, and the property left to descend and be distributed according to law.
    (Decided December 13, 1887.)
    Error to the District Court of Belmont County.
    Morris Cope, as executor of Joshua Cope, deceased, commenced an action in the court of common pleas to obtain a construction of the will of his testator, making the necessary parties. The case was appealed to the district court, which made and entered in the record of its judgment a finding of facts. From this finding it appears that the will was made March 25, 1875, and that, after the death of the testator, it was probated December 13, 1878. That at the date of the will the testator had the following children and grandchildren of deceased children living, to-wit: Two sons, Jesse Cope and George Cope (the latter of whom died before the testator, leaving children, parties to the °suit), and four grandchildren, Frank M. Cope, a son and only child of testator’s deceased son, Caleb, and Mary R. Weeks, Jesse C. Weeks and James M. Weeks, the only children and heirs of a deceased daughter, Sarah J. Weeks, whose husband was also dead; and that $900 wras the full value of the land that had been devised to George by the third item of the will. The will reads as follows:
    “ 1st. I direct that all'my just debts and funeral expenses be paid. Among these debts is $175 due Jesse Cope as his portion of his brother Oliver’s estate.
    “2nd. I direetthat all my personal property,.of whatever sort, shall be sold at public sale, and the proceeds collected together with all the notes and other amounts due me.
    
      “ 3rd. I give and bequeath to my son George Cope all my real estate, adjoining lands of James Wiley, Israel Steer, Reece Berry, and others, with all the buildings thereon, consisting of two dwelling houses, mill, etc., containing about 12 acres, for which he is to pay $900 — to be charged to him as so much cash in the settlement of the estate.
    “ 4th. My estate being principally in bonds on the city of Bellaire and the United States, and my heirs, after consultation, can divide these bonds among themselves, or submit them to sale.
    “ 5th. I give and bequeath to my grandson, son of Caleb Cope, deceased, supposed to be .somewhere in the west, but place not known, $300, to be kept for his use three years, and if not called for in that time, it then to be divided among my other heirs.
    “ 6th. I give and bequeath to my three grandchildren, Mary, James and Jessie, children of John'and Sarah Jane Weeks, both of whom are deceased, a sum equal to one-third of my estate at its final settlement, to be equally divided among them.”
    The district court construed the will to give the farm to the children of George on the payment of $900, as provided should be done by their ancestor in the third item, a legacy of $300 to Frank M. Cope, son of Claeb Cope, deceased; and held that the remainder was given, one-third to Jesse Cope, the surviving son, one-third to the children of George Cope, deceased; and the other third to the children of Sarah J. Weeks, deceased.
    Frank M. Cope excepted to the judgment of the court, and now prosecutes this proceeding to reverse the same, claiming that under the will he is entitled to a legacy of $300 ; and, also, to take as an heir in the distribution of the bonds provided for in the fourth item, and as a distributee in any residue of the estate.
    
      T. W. Emerson and IF. K. Kennon, for plaintiff in error.
    The clause in item fourth, “my heirs, after consultation, can divide these bonds among themseves, or submit them to sale,’’ is the residuary clause of the will, though not in the usual place. If the intention of the testator is to govern, and that intention be ascertained-from, the words used, Frank M. Cope is one of those among whom the bonds are to be divided. Why exclude him?
    
      Heirs is a technical word, and must be taken in a legal, technical sense, unless it appear that the word was used in some secondary sense. The testator has not used any word or sentence that even tends to show that the meaning of the word should be changed; and certainly has said nothing, showing manifestly, clearly or positively that the word should not have its natural and legal signification.
    But the use of the words “other heirs” shows clearly that the testator considered the grandson one heir; then he is not only an heir by operation of the statute, but here the intention of the testator to consider him an heir by operation of his will is manifest. He calls him another one of a class, and that class is heirs. If no specific bequest had been made to Frank M. Cope, or to the Weeks children, the will would have stood unquestioned. The specific bequest cannot control the general one. To exclude any person included in the term “ my heirs,” words, indicating positively the intention to exclude such person must be used. True, inferences might be drawn from the way in which the testator speaks of this heir, that he did not care enough about him to favor him beyond the others; and that if he were away, he could not consult about the bonds, but these are mere inferences; the will says nothing of the sort.The spirit of distance and indifference runs through the whole instrument. Some of the others are not mentioned as legatees by name.
    Item Sixth — The bequest to the Weeks children is unnecessary if the testator intended to exclude Frank M. Cope’s participation in the final distribution, and important if he intended to include him as one of the residuary legatees.
    The will leaves the estate, after the payments of bequests, to the law to designate heirship.
    The reasons, gathered from the words of the will, are stronger in favor of Frank M. Cope as one among whom the bonds are to bo divided, than can be urged in behalf of any other class of the participants in the distribution.
    
      George Duncan, for defendant in error.
    While it is true that the word “ heirs ” is a legal, technical word, still the rule as to the meaning of the word in the construction of wills and the one followed by this court is, not what is meant by the word in its strict proprietary meaning, but what did the testator mean by it? King v. Beck, 15 Ohio, 559; Collier v. Collier, 3 Ohio St. 375; 2 Jarman on Wills, 204. As is said by the court in the case of Worman v. Teagarden, 2 Ohio St. 380, “ a fair construction of a will only is given when the intention of the testator is ascertained from what he has said, read in view of his situation and the circumstances with reference to the subjects of his disposition and objects of his bounty.” Construed in this light and by this rule, did the testator intend that the plaintiff in error should share in the division of bonds mentioned in item four of the will ?
    A fair construction of the will shows that the testator intended to divide his estate equally between George Cope, Jesse Cope and the children of Sarah J. Weeks, except the $300 to Frank M. — giving to George one-third, Jesse one-third, and the Weeks children together one-third.
   Minshall, J.

After a careful examination of this instrument we are satisfied that it can not take effect as a will, by reason of the indefinite and uncertain character of its provisions : Thus as to the fourth item, it is uncertain, in the first place, whether it disposes of anything. It is not dispositive in terms; it simply directs a mode of dividing what is assumed to have been disposed of — a disposition not, however, found in the will. If there weré dispositive words, the subject of the bequest might, by a rule of construction, be held to have been bequeathed equally to all of the class — children and grandchildren alike. But this is contrary to natural affection and could hardly have been intended. Indeed it is probable, from other portions of the writing, that by the use of the words my heirs,” he meant his own children then living, that is, his two sons Jesse and George, or else that he meant, these two, and the children of his deceased daughter, Sarah Jane Weeks, included. He hardly intended to include the son of his deceased son Caleb, as that would make him the favorite object of his bounty, contrary to what seems, from the whole instrument and the manner in which he is provided for in the fifth item, to have been the fact. But such is the technical effect of the language employed, and if this item be regarded as dispositive, then this grandson would take under it equally with the sons of the testator, and also the provision made for him in the fifth item.

Again it is uncertain what the testator meant by “the final settlement ” of his. estate as used in the sixth item. One-third of this he gives to the children of his deceased daughter Sarah Jane Weeks. By the statute it would mean all of the testator’s estate after the payment of debts (§ 6090); for the amount $900, that George is required to pay for the'farm (found also to bo its full value), is to be brought into this final settlement. So that if this construction were adopted, these children would take one-third of his entire estate after the payment of debts; and his two sons (or Jesse and the heirs of George), would, after the payment of the legacy of $300 to Caleb’s son, take each two-ninths, and the latter would take a like part with the legacy added. But this is not reasonable. Or, he may have intended, what would remain of his estate, after paying debts, the legacy to Caleb’s son, and the making of the division of the .bonds as provided in the fourth item. But this construction would be involved in all the obscurity that grows out' of the indefinite and uncertain character of the language employed in that item.

As to the third item, it seems certain that he intended George to have the farm on paying $900 for it; but it is not certain that he intended this disposition to take effect, whether the other dispositions, be intended to make, took effect or not. Indeed, in the light of the fact that the amount required to be paid is the full value of the farm, it is most likely he did not.

The extraneous circumstances incorporated in the finding of the court, throw but little, if any light, upon the obscurities of this will; and it is doubtful whether these could be relieved by any conceivable state of circumstances. Thus, when it is observed that the legacy given to the son of his deceased son Caleb, is to be divided among his other heirs, if not called for in three years, we perceive that the fact of the absence o'f this son was present in the mind of the testator; and this furnishes a somewhat forcible reason for saying that the testator did not intend that he should participate in the division of the bonds; for there is no room for saying that he intended that the division should be delayed until this grandson, “supposed to be somewhere in the west, but place not known,” should return. Then again, the devise of a third of his estate, on final settlement, to the children of his deceased daughter, supplies a strong inference, that he intended to divide the whole of his estate, after the payment of debts and the legacy to Frank, among his two sons then living, and the children of his deceased daughter, giving to the latter as a class, and to his two sons, each a third, particularly as the amount George is required to pay for the farm is its full value, and is to be brought into the fund for final distribution. These considerations are plausible, but if the fourth item were otherwise capable of an intelligible construction, they would hardly be sufficient to warrant a court in excluding one from a class to which, in its technical signification, he belongs.

• Without pursuing the matter, further, we think sufficient has been said to indicate the obscurity in which each item of this will, when considered in connection with its other parts, is involved, and that no construction can be given it, as a whole, for which more can be claimed than that it is a clever guess at the probable intention of the testator. But this is not enough to warrant any particular construction claimed for a will; for, as observed by Mr. Jarman, conjecture is not permitted to supply what the testator has failed to indicate; and if, after every endeavor, the judicial expositor “ finds himself unable, in regard to any particular fact, to penetrate through the obscurity in which the testator has involved his intention, the failure of the intended disposition is the inevitable consequence.” 1 Jarm. Wills, 356*. And further on, the same author observes, that, “ To the validity of every disposition, as well of personal as of real estate, it is requisite that there be a definite subject and object; and uncertainty on either of these particulars is fatal.” Now, in this will, there is first uncertainty, in the fourth item, as to the objects — the persons intended to take, and also, whether it was intended to dispose of anything; and, in the sixth item, there is uncertainty as to the subject-matter devised — as to what shall constitute the fund, of which the children there named were to take a third on the final settlement ” of his estate; and these uncertainties, combined with the apparent, but unexpressed purpose, to exclude the son of his deceased son Caleb from taking any part of his estate, other than th.e conditional legacy given him in the fifth item, involve the entire scheme of the instrument in doubt and uncertainty. And, though the privilege of making á will is one highly respected by the law, yet, as the law itself makes a just and equitable disposition of the property of an intestate among the natural objects of his bounty, it should prevail over the provisions of any attempted disposition, that are so obscure that the general scheme and purpose of the testator cannot be ascertained with any reasonable certainty.

Judgment accordingly.  