
    Gillen et al. v. Kimball et al.
    A testator devised to his wife, daring life or widowhood, all his real estate, accompanied by a bequest of personalty as follows: “And all my personal property, household goods, and provisions, including moneys and credits of every description which may be thereon at the time of my decease, during hei' natural life; she, however, selling so much thereof as may be sufficient to pay my just debts.” He devised the remainder in said real estate to his three daughters in unequal portions. He bequeathed to one of his daughters, $1,500, to another, $1,000, to a. daughter of a deceased son, $500,. and to her mother, $5 ; said legacies to be paid at the death of his widow; and declared that the legacy to-the granddaughter and the one to her mother, together with a tract of land conveyed to the son before his decease, made for them an equitable share of his estate. He also declared that if “ at the death of my said wife, there should be any of my said personal property or money hereby devised to my said wife and heirs, left unconsumed,” it should be divided between his three daughters and their heirs; and concluded as-follows: “ It is my will that all my money, deposited or otherwise, is to-be left on deposit, at interest, during the natural lifetime of my said wife, except the interest to be drawn and used by her as she may need.” He appointed his wife executrix of his will. Held, that the interest accruing during the life of the widow, on moneys and United States bonds, deposited in bank or otherwise existing, belonging to the testator at the time of his death, is, by said will, bequeathed to the widow absosolut.ely; and what remains at her death of the personal estate left by . the testator at the time of his decease, including the principal of said, moneys and bonds, is to be applied to the payment of said legacies, and the residue divided equally among the testator’s three daughters.
    Error to the District Court of Lawrence county.
    The origiual action was brought under the eighth section-of the act of April 17,1857 (1 S. & C. 621), by Julia Kimball,, as executrix of the last will and testament of Asa Kimball, deceased, to obtain the construction of the will of the testator. She made her three daughters and their respective husbands, together with Laura A. Kimball, parties defendant. The said daughters and said Laura were the only heirs at law of the testator, and together with Alice L» Stewart and said widow, are the sole devisees and legatees, under the will.
    The will reads as follows :
    “ In the name of the benevolent Father of all, I, As;v. Kimball, of the county of Lawrence, Ohio, make and publish this my last will and testament.
    “Item 1st. I give and devise to my beloved wife Julia,, in lieu of ber dower, the house and lot on which we now reside, in Union township, Lawrence county, near the-mouth of Symmes creek, in section (33) thirty-three, range-(16) sixteen, township (1) one, containing about (5) five acres. I also give and devise to my beloved wife all my land in sections (29) twenty-nine and (30) thirty, township (1) one, of range (16) sixteen ; containing (90) ninety acres,, during her natural life, as long as she may remain my widow, and all my personal property, household goods and provisions, including moneys and credits of every description, which may be thereon at the time of my decease, during her natural life as aforesaid; she, however, selling-so much thereof as may be sufficient to pay my just debts. At the death of my said wife, the real estate aforesaid at the mouth of Symmes creek, in section, (33) thirty-three, T give and devise to my daughter, Amy Gillen, and her heirs, one acre off the west side of said tract of land. I also give- and devise to my daughter, Amanda D. Noble, and her heirs, one acre off the west side of said remaining tract of laud. I also give and devise to my daughter, Roxana. Suiter and her heirs, all the remaining part of land in section (33) thirty-three, and if the said Roxana Suiter shall1 die leaving no heirs, then said land is to be equally divided between my daughters Amy Gillen and Amanda Noble, and their heirs, at the death of my said wife. I also give- and devise to my said daughter, Amanda D. Noble, and her heirs, all my land in sections (29) twenty-nine and (30) thirty, containing ninety acres. If I shall sell said land before my death, then the said Amanda D. Noble and her heirs is to have two thousand dollars in lieu of said land at the death of my said wife. I give and devise to my ■daughter, Amanda D. Noble, and her heirs, fifteen hundred ■dollars in money. I also, at the death of my said wife, .give and devise to my daughter, Roxana Suiter, and her heirs, one thousand dollars in money. If she shall die, ¡said money shall go to Amy and Amanda and their heirs. .It is also considered by me that the said moneys last men■tioned to my daughters, Amanda I). Noble and Roxana ■Suiter and their heirs, now devised to them in this will, unake for them an equitable share of my estate, with Amy Gillen and her heirs. I also, at the death of my said wife, give and devise to Laura A. Kimball, an heir of Asa Kim-ball Jr., deceased, fiye hundred dollars; if the said Laura .Kimball shall die before receiving said money, it is to be •divided equally among my said heirs. I also, at the death ■of my said wife, give and devise to Alice L. Stewart, widow ■of Asa Kimball Jr., five dollars. It is also considered by ■me that the five hundred dollars devised to Laura A. Kim-ball, and five dollars to Alice L. Stewart, in this will, and ■the tract of land conveyed to my son, Asa Kimball, deceased, and his heirs, make for them an equitable share of my estate. I also, at the death of my said wife, if there ¡should be any of my said personal property or money hereby -devised to my said wife Julia and her heirs left unconsumed, then it is my will that it shall be equally divided amongst Amy Gillen and her heirs, Roxana Suiter and her heirs, Amanda L>. Noble and her heirs. It is my will that all my money deposited or otherwise, is to be left on deposit, at ■'interest, during the natural lifetime of my said wife, except the interest to be drawn and used by her as she may need. I hereby nominate and appoint my beloved wife, •Julia, executrix of this my last will and testament, whereof I herewith set my hand and seal, this 6th day of April, a. d. 1870. [seal.] Asa Kimball.
    The widow elected to take under the will.
    At the testator’s death there were $200 in cash on the ■premises, and sundry promissory notes against individuals amounting to about $3,563; also, personal property consisting of horses, cows, hogs, grain, farming utensils, provisions, household goods, and furniture, etc., to a considerable amount. He also had on deposit at the First and Second National Banks of Ironton, $1,467.50; and at the same place, $17,400 in bonds of the United States.
    The executrix propounded the following questions : '
    1st. What interest does the said plaintiff take in the personal property, moneys, and credits upon the said real estate at the time of the death of said Asa Kimball, deceased ?
    ' 2d. What interest does she take of the moneys on deposit ?
    3d. What interest does she take in the bonds aforesaid, of the United States ?
    4th. If it should be the opinion of this court that she only takes a life interest in the said personal property and bonds, is she not absolutely entitled to all the interest which may accrue thereon ?
    5th. Are the said bonds devised at all ? if to her for life, is the residue devised after her decease?
    6th. Is the word heirs limited to the heirs of the body, or is it used in the general sense, unlimited ?
    7th. In the event of the death of either said Amy Gillen, Roxana Suiter, or Amanda D. Noble, without heirs of their bodies, to whom does the interest of any such deceased person descend ?
    Other facts were stated, not material to be noticed.
    The plaintiffs in error demurred to the petition — First, for want of jurisdiction by the court of the subject of the action. And, secondly, for want of facts sufficient to constitute a cause of action. The demurrer was overruled, judgment given in the court of common pleas, from which the cause was appealed to the district court, where the same judgment was rendered, to which the plaintiffs in error excepted. The judgment of the district court was as follows :
    “ First. That there is devised to the said Julia Kimball, and under said will she takes and is entitled to hold all the personal property, moneys, and credits, including the said notes and accounts particularly mentioned in said petition, and all other, except the money deposited in banks and said government bonds, belonging to the said Asa Kim-ball, deceased, at the time of his decease, during her natural' lifetime, and while she may remain unmarried.
    “ Second. That the said Julia Kimball is entitled to the-interest accrued and accruing on said money deposited in said bank, during her natural life, to be drawn and used by her as she may need the same ; but has no other or further interest in, or title to, the said money so deposited.
    “ Third. That by the provisions of said will the said Julia Kimball takes no interest in, and has no title to, said United States bonds, or in any interest that has accrued or that may accrue thereon.
    “ Fourth. That the said United States bonds are in noway devised or disposed of by said will, nor is the interest that has accrued or may accrue thereon devised to any one,, but said bonds and the interest accrued and accruing thereon are to be disposed of and distributed by said executrix according to the laws of descent and distribution of personal property, and as if said Asa Kimball died intestate; and that as between said Amy Gillen, Roxana Suiter, .Amanda I). Noble, and Laura A. Kimball, only heir at law of Asa Kimball, Jr., deceased, they are entitled to share alike in the distribution of said bonds, according to the statute of descent and distribution.”
    This construction of the will is assigned as error.
    
      W. II. Enochs for plaintiff in error:
    The intention of the testator must govern in the construction of a will, and that intention is to be gathered from the whole will.
    Guided by this rule, the clause of the will under consideration, “All my personal property, household goods, and provisions, including moneys of every description, which may be thereon at the time of my decease,” passed the whole of the personal estate, including the United 'States bonds, nndevised by special devises. 2 Jarman on Wills, 605, ch. 24; 4 Kent’s Com. 634, 635; Doe v. Morgan, 6 Barn. & Cress. 512 ; Kendall v. Kendall, 4 Russ. Ch. 300; Arnold v. Arnold, 2 My. & K. 365; Grover v. Davis, 7 Jur. N. S. 339 ; Collier v. Collier, 3 Ohio St. 374; 7 Cranch, 173; 3 Wheat. 573; 4 Kent’s Com. 54.
    The rule that a man is not presumed to die intestate as to any of his property to which his attention seems to have been called, applies here. Cushing v. Aylwin, 12 Met. 169 ; Pray v. Watterson, 12 Met. 262.
    
      P. C. Hoffman, for defendant in error, claimed:
    1. That the petition in error should be dismissed for want ■of proper parties plaintiff. These sons-in-law and husbands have no such interest in the controversy as warrants their meddling in the matter. Nothing was devised to them by will, and no order is made against them in the judgment. Whatever came to their wives was the separate property of the wives, and under their sole control. S. & S. 389 ; 68 Ohio L. 48; Sec. 28 of the Code (71 Ohio L. 47); 1 Handy, 537; 8 How. Pr. 395 ; 9 How. Pr. 466; 13 Ohio St. 72; 1 Beavan, 288; 2 Kem. 59; 1 Kern. 7; Mitford’s PI. 30, note 1; 1 Sim. 239 ; Story Eq. PL § 63; 2 Yes., Sr., «66.
    2. By the terms of the will, the United States bonds are undevised, and the interest only of “ the money on deposits at interest,” is devised to the widow, “if it is needed.”
    
      (a) In construing this will, and in determining whether the principal of this money on deposit, and the bonds are ■devised, it is of the highest significance to note that there is no residuary clause in this will nor any words implying an intention to make a complete disposition of all testator’s property. ^
    ^ It is claimed to be a rule of construction, that a testator is never presumed to die intestate, as to any part of his •estate, to which his attention has been called, and a court •of equity will put such a construction on equivocal words as to prevent such a result.
    
      The eases cited by counsel in support of this are all cases where there was an expressed effort, by residuary words, to dispose of the whole estate — we believe no case can be found where this rule is applied, when there is no such clause or words. See Needles v. Needles, 7 Ohio St. 432; 19 Ohio, 328.
    
      (b) Where there is no such intention shown by the will,, and the mere fact that a will is made, is not expressive of such intent, the rule has no application.
    Again, in this will, there are no “ equivocal wordsand in Gilpin v. Williams, 17 Ohio St., 396, where this rule was-invoked, Judge Welch says, “But when there are no equivocal words, this rale can have no application.” Again, there is nothing in this will to show that the attention of the testator was called to the United States bonds.
    
    
      (c) But the conclusive answer to this is : that courts will not give such a construction to equivocal words as to clisinherit an heir.
    
    Laura A. Kimball was the only child of his son Asa, and the heir to his share.
    
      (d) The devise of personality on the farm and choses inaction, such as notes $4,563, and cash $299, is made in connection with the disposal of the real estate to the widow,, during her natural life, or widowhood, and is in these words: “ And all my personal property, household goods, and provisions, including moneys and credits, of every description, which may be thereon at the time of my decease, during her natural life.”
    This gift of the personalty on the farm, unlike the devise-of the real estate, is not defeated by her marriage, the terms “ as long as she may remain my widow,” being omitted here.
    
    In this part of the will nothing is said about the estate in remainder in the real estate, nor in the personalty, but-after disposing of the estate in remainder in the real estate, the will goes on to say: “ I also at the death of my said wife, if there should be any of said personal property,, hereby devised to my said wife, Julia, left unconsumed,. then it is my will that it shall be equally divided amongst,” etc.
    This is a clear and unmistakable description of the personalty described in the first clause quoted and described as “ said personal property ” which was on the real estate, and can not be so enlarged as to embrace money and bonds, not devised for life, nor described, under the name of “ all my personal property,” etc., “ which may be thereon,” that is, on the devised real estate.
    After thus making a complete disposition of this class of personalty, the testator then speaks of money on deposit.
    By an independent clause he says: “ It is my will that all money on deposit or otherwise, is to be left on deposit at interest, during the natural life time of my said wife, except the interest to be drawn and used by her as she may need.”
    Here is a clear line of demarkation drawn. All the personalty, including moneys and credits, that may be on the real estate, is devised to the widow, during life; charged, with the payment of debts and with her right to consume the whole, if needed, and only that part left unconsumed at her death goes to the legatees; but the money on deposit is so fixed that it is not charged with the debts, neither has she the general power to consume it.
    To construe the general devise of personalty in the first clause, so as to embrace this money or bonds in banks, would give the widow the right to consume it, and thus defeat the positive language that this money on deposit was to be left at interest, the widow only having the right to draw the interest if needed.
    As to the former, the right to consume the whole is only vested in the widow; as to the latter, the right to draw the interest if needed, only is given.
    Any construction which blends two classes defeats the intention of the will.
    
      (e) A devise of “ all the remainder of my moneys ” will not embrace money in the funds. Willis v. Plasset, 4 Beaver, 208.
    
      The word “ money ” in a will means that and nothing else. 9 Beav. 324.
    It means gold and silver and the lawful circulating medium of the country. Coke Litt. 20, 7 A.
    As to the meaning of the word “ money ” and what passes under the term, see Mann v. Mann (1 John, Cla. 231 and § 14; Johnson, 9), in Redfield’s Am. Cases or Wills, p. 528, where most of the cases are cited.
    
      W. W. Johnson, also for defendant in error:
   Boynton, J.

The construction given to the will of the-testator by the district court, we believe to be erroneous. Where' a will is executed, making a disposition of property of the testator, both real and personal, a presumption arises that he intended thereby to dispose of his whole estate, unless the contrary appears. And, although the will in the present instance was evidently drawn with little attention to accuracy of language, enough appears to satisfy us that no part of the propei’ty of the testator was left undisposed of. The clause giving to the wife ■“ all my personal property, household goods, and provisions, including moneys and credits of every description which may be thereon at the time of my decease, during her natural life,” standing alone, and its meaning ascertained without regard to other provisions of the will, would seem to lead to the conclusion contended for by counsel for the defendant ; although, in such case, giving to the word “credits” a locality or abiding place, would involve a somewhat singular use of language. But nothing is more clearly settled, or of more frequent application in the construction of a will, than the rule Requiring the intention of the testator to be gathered from all its parts, and not from isolated passages; and when this clause is considered in conjunction with the remaining provisions, such intention is readily ascertained. The words “ which may be thereon ” evidently relate to the personal estate previously mentioned, other than money or credits, which might, at the testator’s death, be on tbe premises; for, in tbe very next line, he directs the sale of so much thereof, referring to the property “ which may be thereon,” as may be sufficient to pay his just debts, —a direction that will hardly be claimed to refer to moneys or credits.

But we find, further on, that he gave, to be paid out of the personal estate, at the death of the widow, legacies amounting to $3,005. It is by no means clear, that what remains after payment of the debts of the estate by the executrix, and the consumption by her of what she is entitled to consume or expend during life, will be sufficient to pay off and discharge the legacies thus created, unless the money on deposit, or the United States bonds, are available for the purpose; and if the legacies are not paid, that ■equality of participation in the testator’s estate, which the payment of the legacy to Mrs. Noble, and the one to Mrs. ■Suiter, was designed to effect among the three daughters, will be entirely defeated.

Again, what the testator says of the provision made for his granddaughter, Laura A. Kimball, and the one for her mother, Mrs. Stewart, in conjunction with what is said re•specting the gift to the son before his decease, would seem to show quite clearly, that he did not intend Laura to have •any other or further portion of his estate, than that provided by the will. He says, “ It is also considered by me, that the $500 devised to Laura A. Kimball, and $5 to Alice L. Stewart, and the tract of land conveyed to my son, Asa Kimball, deceased, and his heirs, make for them an equitable share of my estate.” It is a mistake to suppose that this language is the same in import as that used in respect to the legacies of Mrs. Noble and Mrs. Suiter. The testator declared that he considered their legacies to make for them an equitable share of his estate with Amy Gillen and her heirs. Here, manifestly, is an implied reference to a previous advancement to Mrs. Gillen, which, in the distribution of his •estate, she is required, to account for. This advancement .and the devise to her by the will, with the legacy and devise to each of her sisters, placed the three upon a footing of equality; and this is what the expression of the testator, in effect, declared, and in our judgment, is all that it meant. But when he declared that the legacy to the granddaughter, and the one to her mother, in connection with the tract of land conveyed to the son before his decease, made for them an equitable share of his estate, he evidently intended to convey the meaning that this language implies, for he divides what remains unconsumed at the widow’s death, of the “personal property or money” bequeathed to her and “ his heirs ” among his three daughters, excluding the granddaughter from any share or participation therein. 'Why deny her a share in this residue, and permit her to receive, as heir, one-fourth of the bank deposit, and of the United States bonds, which constituted much the larger part of his estate ? It is also to be observed, that the property to be divided among his three daughters at the widow’s-death, is what remains of the “ personal property or money hereby devised to my said wife, Julia, and heirs, left unconsumed.” No money or personal estate of any kind had been bequeathed to the “ heirs ” which they could avail themselves-of, or consume, during the life of the widow, as the legacies-to them were not payable until the widow’s death. The testator, therefore, must have intended by this language to direct to be divided among the three daughters, the remainder left unconsumed by the widow, after deducting the-$3,005 required to pay the legacies.

It is, however, claimed, that the last clause of the will by which the testator expressed the desire that his money remain “ on deposit,” at interest, during the life of the widow, is inconsistent -with an intention to give the principal sum to the widow for life; and, inasmuch as the fund to be equally divided among the three daughters, at her death, was what remained unconsumed of the bequest to her for life, after paying the legacies created by the will, that such fund so at interest, could not, within the intention of the-testator, have been included in the sum to be so divided.

That there is some apparent force in this claim can not be denied. But the same thing may be urged, and with the same propriety, in respect to money not in bank, but loaned ont to individuals, notes for which were found at the testator’s residence at the time of his decease. The languageis: “It is my will that all my money, deposited or otherwise, is to be left on deposit, at interest, during the natural life-time of said wife, except the interest to be drawn and used by her as she may need.” The words “ or otherwise,” refer to money not in bank, and include money that may have been in the house of the testator when he died, as also that at interest elsewhere than in bank.

The argument, therefore, that because the widow was not authorized to use any portion of the principal of the money on deposit in bank, or of the United States bonds, the same was not disposed of by the will, would reach, and subject to the same consequences, all money that was on the premises, or loaned out to any and all persons at the death of the testator; a result which no one contends for and which is manifestly opposed to the clearly expressed purpose of the testator. All “ moneys and credits of every description,” having, by a previous provision, been given to the widow, during life or widowhood, wre think the latter clause was designed to make the use of the same of some value to her, by requiring the principal sum to remain at interest for her benefit.

Nor does it seem to us that the testator intended to restrict his wife to such sum to be drawn from the accumulating interest, as would merely meet her needs and necessities. He had previously given her, for life or widowhood, all his property of every kind. His subsequent direction, to keep the money at interest, “ the interest to be drawn and used by her as she may need,” could not have been intended as a restriction or limitation upon the bequest of the use of the money previously given.

That this direction is susceptible of this restricted construction is very true; but we think it better comports with the intention of the testator to be drawn from the whole context of the will, to regard the expression “ as she may need,” as equivalent to “ as she may desire.” This involves the right to use and dispose of all the interest to accrue on money loaned during the life of the widow, without reference to her personal wants or necessities.

Whether the phrase “ moneys and credits of every description ” includes the money on deposit and the United States bonds, depends also on the intention of the testator. In Boys v. Morgan, 3 My. & Cr. 661, a clause in the following language came before the court for interpretation, viz.: “ I guess there will be found sufficient in my bankers’ hands to defray and discharge my debts, which I hereby desire E. M. to do, and keep the residue for her own use and pleasure.” This was held, under the circumstances, and upon the whole context of the will, to amount to a gift of the general residuary personal estate to E. M.

A testator directed the income arising from his “principal money ” to be paid to his wife, while unmarried, for the support of herself and the education of his children, and at her death or marriage to be divided among the children. The testator had but little money, strictly so called, but he had a large personal estate and some freehold property. It was held thatathe whole personal property passed, including leaseholds. The Vice-Chancellor, speaking of the testator’s intention, said: “In using the term ‘principal money,’ I think he intended to signify all his capital — that is, he meant a universal disposition of all his money’s worth.” Prichard v. Prichard, L. R. 11 Eq. Cas. 232.

In Manning v. Purcell, 7 DeGex. M. & G. 55, a bequest of “ all my moneys ” was held to include the balance standing to the credit of the testator at his banker’s, one upon an ordinary current account, the other secured by deposit notes bearing interest. See also, Dowson v. Gaskoin, 2 Keen, 14. A testator gave to his son "William and two others all the money left at his decease. Erom the condition of his property, this was held to include money due on promissory notes. Morton v. Perry’s ex’rs, 1 Met. 446.

In Fulkerson v. Chitty, 4 Jones’ Eq., 244, the word “ money,” or “ moneys,” used in a will, was held to include bank stock and bonds, the context favoring such construction ; and In the matter of the estate of Miller, 48 Cal. 165, tbe word “ money,” as used in the will of the testator, was held to include both personal and real estate. See Smith v. Davis, 1 Grant, 158 ; Kendall v. Kendall, 4 Russ. Ch. 860.

Cases of a similar character might be multiplied to a great extent. They all rest on the familiar principle that such construction must be given to the terms of a will as will effectuate the intention of the testator, to whatever consequences such construction may lead.

Our conclusion is, that the widow took, and is entitled to all the personal estate, including the deposit in bank and the United States bonds, during her natural life.

But, as respects the money on deposit or at interest, and the United States bonds, she is not authorized to expend or reduce the principal, but is entitled to the interest accruing thereon absolutely; and -what remains at the death of the widow, of the entire personal estate, exclusive of said interest, constitutes the fund from which the legacies are to be paid, the residue to be equally divided among the three daughters.

The objection that the respective husbands of the testator’s three daughters were improperly united as parties to the action is not well taken. Reinheimer v. Carter, 31 Ohio St. 579.

The judgment of the district court is reversed, and judgment rendered in accordance with the conclusion above stated.  