
    Renner et al. v. Williams.
    
      Words of survivorship in mil — Prima facie refer to time of testator's death — Descent and distribution of property — Interpretation of terms in will.
    
    1. Words of a survivorship in a will prima facie refer to the time of the testator’s death, because that is the time at which the property to be divided usually comes into enjoyment; but if the time of payment or distribution of the bounty, or the time of vesting an estate, be postponed in the will to a time later than the death of the testator, the words of survivorship will relate to such later period.
    2. A testator declared as follows: “Item Third. I do give all the balance of my real and personal estate to my son S and my daughters H and M to be divided equally between them share and share alike. Item Fourth. In case of the death of either one or more of the children named in item three, namely, S, H and M, the survivor or survivors shall inherit the property bequeathed to them both in item one and item three; if more than one survivor, to be divided equally, share and share alike.” The words “survivor or survivors” in item fourth mean survivor or survivors at the time of the testator’s death; and the interest in the real estate devised by item third is an estate in fee simple which vested immediately on the death of the testator, so' that on the death of H and M, respectively, after the death of the testator, their interest in the real estate passed by descent to their respective heirs and not to their brother, S, as survivor.
    (No. 8513
    Decided January 17, 1905.)
    Error to the Circuit Court of Licking county.
    The facts sufficiently appear in the opinion.
    
      Mr. Geo. Arthur, attorney for plaintiffs in error.
    To what does the survivorship involved in item fourth relate? To what time does the testator refer when he speaks' of the death of one or more of his children? Does he refer to the contingency, if not probability, that one or more of them might die in his lifetime, and before his will eonld take effect? Or did he intend to provide for the happening of such an event after his own death, and after the three children named- in this item acquired their title to the property-given to them by the first and third items?
    Of course, the entire will must be considered in construing any item or provision in it. And the intention of the testator must govern in its construction. Every word in the will must be presumed to have some meaning; and the language used by the testator must be read and understood in its ordinary and popular sense, unless the context or nature of the subject clearly imports some other meaning. These principles of law are too well settled to admit of controversy. Townsend’s Exrs. v. Townsend, 25 Ohio St., 477.
    Is it not clear, from the language used in the will, that he intended to give the residue of his estate to those of his children who might be living at the time of his death; and that he intended the fourth item to qualify the first and third items only in case the three children living when the will was made should not all survive the testator? He does not say in these words that if any of his children die in his-lifetime the others shall take the residue of his estate in fee simple; but all of the facts in the case show that this was his intention. And this, we respectfully submit, is the legal effect and meaning of the language used by the testator in the fourth item of his will, according to all of the authorities on the subject. Lawrence v. McArter, 10 Ohio, 38; Sinton v. Boyd, 19 Ohio St., 30; Baker v. McGrew, 41 Ohio St., 113; Parish’s Heirs v. Ferris, 6 Ohio St., 563; Niles v. Gray, 12 Ohio St., 320; Taylor v. Foster’s Admr., 17 Ohio St., 166; Page on Wills, sec. 545, p. 628; Johnson v. Webber, 65 Conn., 501; Ruggles v. Randall, 70 Conn., 44; Kellet v. Shepard, 139 Ill., 438; Tucker’s Will, 63 Vt., 104; Howland v. Slade, 155 Mass., 415; DeWolf v. Middleton, 18 R. I., 810.
    Whenever there is an intervening estate, as a devise to one for life, and at his death to his heirs in fee, or to a class named in the will, the heirs, or the class, are to he determined at the date of the life tenant; because that is the time when distribution is made and the remaindermen get possession of the property — though the estate in remainder vested in them at the death of the testator.
    As already shown in Sinton v. Boyd, and by Red-field, above cited, the rule is the same in this country and in England as to the time to which words of survivorship in a will relate.
    “In seeking for a period to which the words of survivorship could be referred, the obvious rule where the gift took effect in possession immediately on the testator’s decease, was to treat these words as intended to provide against the death of the objects in the lifetime of the testator, the devise affording no other point of time to which they could be referred. Accordingly, we find this to be the established construction.” 3 Jarman on Wills (5 Am. from 4 London ed.), 572; citing numerous English, and the following American cases: Hempstead v. Dickson, 20 Ill., 193; Ross v. Drake, 37 Pa. St., 373; Buckley v. Reed, 15 Pa. St., 83; Martin v. Kirby, 11 Graft., 67; Passmore’s Appeal, 23 Pa. St., 381; Drayton v. Drayton, 1 Desaus., 324; Lawrence v. McArter, 10 Ohio, 38; Mowatt v. Carow, 7 Paige, 339; Young v. Robinson, 11 Gill & Johns., 328; Moore v. 
      Lyons, 25 Wend., 119; Dominick v. Moore, 2 Bradf., 201; Morse v. Mason, 11 Allen, 36; Scott v. Guernsey, 48 N. Y., 106; Lord Bindon v. Earl of Suffolk, 1 P. W., 96; Smith v. Horlock, 7 Taunt., 129; 3 Jarman on Wills, 274-579; Brown v. Biggs, 7 Ves., 279, was the first case in which this variation from the old rule was allowed; Cripps v. Wolcott, 4 Mad., 11; Blewitt v. Roberts, 10 Sim., 491. This same rule was followed in Pope v. Whitcombe, 3 Russ., 124; Neathway v. Reed, 3 D. M. & G., 18; and Vorley v. Richardson, 8 DeGr. M. & G., 126. In all of these cases the words of survivorship were referred to the period of distribution; and in each case there was an intervening life estate between the death of the testator and the time appointed for the payment to the surviving legatees.
    But “if the tenant for life dies before the testator, the death of the latter, as the period of actual distribution, will be regarded as the period of survivor-ship.” Spurrell v. Spurrell, 11 Hare, 154; 3 Jarman on Wills, 588; and Watson v. England, 15 Sim., 1.
    So, where there was a gift for life, with remainder to three persons by name, and “in the event of the death of either in the lifetime of the tenant for life, his share was to be transferred to the survivors, and if only one should be living, then to him or her so surviving,” it was held that this was not a survivor-ship among the remaindermen, but had reference to the death of the tenant for life. Littlejohn v. Household, 21 Beav., 29; Page v. May, 24 Beav., 323.
    
      Neathway v. Reed, supra, is exactly in accordance with the decision in Sinton v. Boyd, 19 Ohio St., 35, where the same rule is stated by Judge Day, and shown to be the same in England and America.
    
      The result of all these decisions, at home and abroad, is that words of survivorship in a will, both as to real estate and personal property, must be understood as relating (1) to the time of the testator’s death; or (2) to the period appointed by the will for distributing the estate to the survivor or survivors; or (3) to such other date as may be expressly named or clearly and unmistakably implied in the will.
    Words exactly the same, or very nearly, and of the same import, as those used in the will in this case, are found in numerous eases, and in the text books, where their meaning has been defined and declared. In every instance it has been held that they refer to the testator’s death, or to the time of distribution; and that the devisees or legatees who survive the testator, or who are living when the time is reached for distributing the property, take the estate. Jar-man on Wills, chap. 48, p. 65, et seq.; Theobold on Wills, 336; Cambridge v. Roves, 8 Ves., 12; Crigan v. Banies, 7 Sim., 40; Taylor v. Stanton, 2 Jur. (N. S.), 634; Howard v. Howard, 21 B., 550; Arthur v. Hughes, 4 B., 506; Harvey v. McLaughlin, 1 Pr., 264; Johnson v. Antrobus, 31 B., 556; Boliths v. Hillyar, 34 B., 180; Theobold on Wills, 336; Hinckley v. Simons, 4 Ves., 160; Rodgers v. Rodgers, 7 W. R., 541; Crowley v. Knapp, 13 Vroom, 297; 3 Jarman on Wills, 611, et seq.; Peterson v. Beach, 5 Dec. Re., 553; 6 Rec., 513; and Bates’ Dig., 187.
    It is, therefore, settled by these and many other decisions to the same effect, that a devise “in case of the death” of any person named in the will involves a' contingency which must be referred (1) to the death of such person in the lifetime of the testator, or (2) before the time appointed by the will for distribution. Whenever the gift is immediate — to take effect as soon as the testator dies — these words, or any words of like import, mean death in the lifetime of the testator; for in such case there is no other time to which they can be referred. But when the gift is to take effect at the termination of a life estate, or upon the happening of some event after the death of the testator, then these words must be construed to mean death before distribution; but never at any time thereafter, unless imperatively required by the terms of the will, in order to carry out the intention of the testator. And before there can be any departure from the general rule above stated, a different intention must be manifested by the testator in clear and unmistakable language.
    In case of doubt, the law favors the vesting of estates ; and prefers the earliest date that is possible, without violating any of the terms of the will. This is especially true in Ohio, and when the devise or bequest is to a member or members of the testator’s family. Linton v. Laycock, 33 Ohio St., 128; Bolton v. Bank, 50 Ohio St., 293.
    Where, in the construction of any clause, there is doubt as to the point of time it was intended the estate should vest, the earliest will be taken. Miller v. Keegan, 14 Ind., 502; Guyther v. Taylor, 3 Ired. Eq., 323; Hilliard v. Kearney, 1 Busb. Eq., 221; Collins v. Collins, 40 Ohio St., 353; McArthur v. Scott, 113 U. S., 340.
    This is not, upon the facts found, an executory devise. The defendant is not, of course, entitled to the land as remainderman; because there is no preceding estate created by the will to support a remainder, either vested or eoíítingent; and the testator did not intend to give any of his children a life estate or a remainder in fee in any of Ms land. At least he used no apt words to indicate any such intent.
    Nor can the defendant take the estate in fee, at the death of both of his sisters, by way of an executory devise; because there is not the slightest intimation in any part of the will, that the testator intended or desired to give any of Ms cMldren a future estate in any of his land. Redfield on Wills, pt. 2, 643; Doe v. Provoost, 4 Johns., 61; Lessee of Thompson v. Hoop, 6 Ohio St., 481; Durfee v. MacNeil, 58 Ohio St., 238; Taylor v. Foster’s Admr., 17 Ohio St., 166; Jarman on Wills (ed. 1861), 819; Quincy v. Rogers, 9 Cush., 249.
    Death of one or more of his children in the lifetime of the testator is the only contingency possible in this case.
    The words of the fourth item, read alone or in connection with the other parts of the will, admit of no other interpretation. This is their natural and legal effect. Assuming that they imply a contingency, and refer to some event or events that might or might not happen, it would be absurd to suppose that they have reference to the death of one or more of the devisees unassociated with, any other fact, circumstance or condition. Because, as already stated, there is nothing uncertain or contingent about death.
    It follows, therefore, as well from these circumstances as from the numerous authorities above cited: (1) that the language of the will expresses a contingency in the death of one or more of the children who are named, as devisees; (2) that such contingency must happen, if at all,' in the lifetime of the testator; (3) that the words of survivorship in the fourth item necessarily relate to the■ death of the 
      
      testator, which in this case is the time fixed for distribution — and not to any other time; and (4) that the language of the will will not bear any other construction.
    
      Messrs. Cunningham é Boggs, attorneys for plaintiffs in error.
    In support of our contention in this case we will submit the following propositions as supporting the construction placed upon said will by the plaintiffs, and as a complete solution of the questions raised on this record.
    1. Words of survivorship, where no other period is fixed by the express language of the will or by necessary implication from the words used, is the period of distribution. 1 Underhill on Wills, sec. 349, and cases there cited; Lawrence v. McArter, 10 Ohio, 37; Sinton v. Boyd, 19 Ohio St., 30; 2 Jarman on Wills. (4 Am. ed.), star page 632; 29 Ency. of Law and Evidence (1 ed.), 449, and cases there cited; 2 Redfield on Wills, sec. 4, star page 488; Presley v. Davis, 62 Am. Dec., 396.
    2. The period of distribution where no other is fixed by the express words of the will or by necessary implication from the words used, is the death of the testator. Baker v. McGrew, 41 Ohio St., 113; 2 Jarman on Wills (4 Am. ed.), star page 648; 1 Underhill on Wills, sec. 350.
    3. Unless clearly restricted by the express provisions or context of the instrument to some other period, the words, “in case of death,” or “in the event of death” or words of similar import must be construed as relating to the meaning:
    (a) The death of . the devisee or legatee in the lifetime of the testator. 1 Underhill on Wills, sec. 342; Vass v. Freeman, 69 Am. Dec., 734, and cases there cited.
    (b) The death of the devisee or legatee before the distribution of the gift or devise. 1 Underhill on Wills, sec. 345, and cases there cited.
    4. As favoring the above rules of construction the policy of the common law has always been and the policy of the law in this state is, in favor of the early vesting of estates, and in questions of doubt in the construction of a will that construction will be given which affects the early vesting of estates. Linton v. Laycock, 33 Ohio St., 128; McArthur v. Scott, 113 U. S. S. Ct., 340; 29 Ency. of Law and Evidence (1 ed.), 441, and cases there cited.
    5. It is a rule of construction in regard to shares which have once vested by survivorship that they shall not so vest again unless by force of express words to that effect. 2 Redfield on Wills, star page 373, and cases there cited.
    6. It has also become a cardinal rule of construction in the interpretation of wills, that a clear gift is not to be cut down or limited by any subsequent provision unless the latter is equally clear. Collins v. Collins, 40 Ohio St., 364; Den v. Baskerville, 11 How. (U. S.), 329.; Rhodes v. Rhodes, 137 Mass., 343; Wicker v. Ray, 118 Ill., 472; 29 American and English Ency. of Law (1 ed.), 369, and eases there cited.
    With but few exceptions (where the policy of the law has become a rule of property), the intention of the testator to be gathered from his will is the first rule of construction governing the construction of'wills, and if is only -where the-testator has failed to definitely express his intention in exact language in his will, that rules of construction become necessary in arriving at the intention of the testator.
    In the case at bar the testator has failed to indicate by the express language of his will the exact time to which the words of survivorship contained therein refer. And it is under these conditions and in cases of this character, that the rules of construction laid down by the courts in the early days of the common law, and which have been followed with but slight variations or deviations by all the courts in the various states in this country, become applicable and necessary in arriving at the intention of the testator.
    The early English cases held to the rule that where words of survivorship were used by the testator without referring them to any specific time, that then the law would fix the time as of the death of the testator, and that without reference to whether the devisee or legatee was to come into an immediate possession or enjoyment of the property devised or bequeathed upon the death of the testator.
    And later this same rule of construction was applied to devisees of real estate as well as to bequests of personal property.
    This later construction, that is the construction fixing the period to which the words of survivorship should be referred, where not expressly fixed by the terms of the will or by necessary implication from the words used, at the death of the-testator where that was the period fixed for the distribution of said estate, or to the termination of the particular estate when that time was fixed as the period of distribution, has become the rule of construction adopted by the courts of the different states of this country, and by tbe courts of the state of Ohio. Baker v. McGrew, 41 Ohio St., 113.
    These rules of construction have been adopted and followed by the courts of this state, in the case of Sinton v. Boyd, 19 Ohio St., 35, heretofore cited, and in the case of Taylor v. Foster, 17 Ohio St., 166.
    Tested by these rules the only event to which.the contingency of death contained in the fourth item of the will, can be referred is the death of the testatorf that being the period at which the beneficiaries came into the enjoyment of their respective interests in said estate. And at that time their interests became vested absolutely in fee simple, and were' no longer subject to the .provisions of said will. They could have said their respective interests and passed a good title to the purchaser, and, dying intestate, their interest would pass by descent under the statute.
    The construction contended for by the plaintiffs in this case is in keeping with the well established general rules laid down in the decisions of this state and by the text writers on the subject of wills, namely:
    1. That that construction is to be given in the interpretation of a will which is'most favorable to the heir at law.
    2. That an express and positive devise cannot be controlled or cut down by subsequent clauses of doubtful meaning.
    3. That shares which have vested once by survivorship shall not so vest again unless by force of express words to that effect.
    4. That it is a well established policy of the law that the early vesting of estates is to be favored, and where a clause of a will will admit of two construetions, one affecting an early vesting of the devise, and another favoring a determinable devise that construction is to be adopted which vests a devise at the earlier period.
    
    
      Messrs. Kibler & Kibler, attorneys for defendant in error.
    From this will and by item four the testator contemplated and provided that, so far as the $4,000.00 given his wife was concerned, the distribution might occur subsequent to his death. If that was his intention, as it certainly must have been, as to the personal estate or money given to his wife, it cannot be logically said, that the period of disposition of the real estate applied to the date of his death. He contemplated that his wife might survive him, and she did survive him about three years. The two kinds of property are inextricably connected in item four, and any just construction will require that if one kind is to be disposed of after his death, the other goes with it, as to the period of disposition. We humbly submit that this' construction settles the case, and it is unnecessary to pursue the learned argument of the counsel for plaintiffs in error. For it is that implications in the will shall override all artificial rules of construction.
    But if we are in error about this contention, we claim that it is not the law in Ohio to assume that the intention of the testator in the fourth item of the will and the whole will shall be construed to apply to death in his lifetime, but that each of these three had a determinable fee, and that when each died his or her whole interest passed to the others, and that the sole survivor took the whole title. Without reference to the antiquated learning claimed to establish a rule that where a survivorship is stated in the will, it relates to a survivorship occurring before the death of the testator, or at his death, we insist that the plain meaning of the words is, that the three did not take at his death a fee simple estate proper in ' the lands or an absolute estate in money, but a determinable fee in the lands depending upon the sur-, vivorship whenever it should happen. .There is nothing in the facts set forth in the bill of exceptions bearing upon the intention of the testator, as is claimed in the briefs for plaintiffs in error, that should affect the construction of the will and any subsequent facts could not change the intention expressed in or to be gathered from the will itself. But if these facts, or any of them, are, to be considered, it will be noted that at the date of the will Huldah was thirty-nine years old and Mary C. thirty-four years old, and unmarried, and that the two died unmarried and without issue, and the testator may have had in his mind that they were not likely to marry.
    Now the testator disposed by item three of any personal estate not given to the widow and his real estate to the three children. He limits in item four the disposition of the real estate mentioned in item three, and the $4,000.00 to the widow for life, mentioned in item one.
    So that the question is: '
    1. Did he postpone the final disposition of the real estate by that item as he did postpone the disposition of the $4,000.00. If not,
    2. Can it logically or justly be-inferred that item four related to the survivors at the date of his death?
    
      The testator does not say that if any of the three children die in Ms lifetime, the others shall take the interest of those who so die. If he had so intended he would have so said. To give these words that meaning, the words die in Ms lifetime must be inter.polated, if not interpolated in fact, they must be interpolated by construction or by some arbitrary rule. 'We say it is just as proper to insert after words “in case of the death” the words “at any'time” and we say more proper because the will looks to the future, speaks as of his death, and there is no looking either to the date of his will or to the daté of his death. The words “bequeathed to them” would naturally refer to the will which took effect or could take' effect only after the death of the testator — at least there is no plain restriction that the contingency should happen before his death. Pendleton v. Bowler, 11 Dec. Re., 551, 27 W. L. B., 313; Parish v. Ferris, 6 Ohio St., 563; Taylor v. Foster, 17 Ohio St., 166.
    The only difference in the Taylor case from the case here is, that the contingency there was dying without issue, and in the absence of those words the ease here is stronger. This case has been cited in Ratliff v. Warner, 32 Ohio St., 334, and in Lapham v. Martin, 33 Ohio St., 99, and has not been modified, explained or overruled. Niles v. Gray, 12 Ohio St., 320.
    ■ This case followed and approved, Parish v. Ferris, 6 Ohio St., 563; and of Niles v. Gray, it has been said in Piatt v. Sinton, 37 Ohio St., 355, that that decision “has become a rule of property in this state and we are not disposed to reconsider it. ’? It has frequently been cited and has not been overruled. Durfee v. MacNiel, 58 Ohio St., 238.
    
      If the contention for plaintiff in error is good law, there was error in each of these cases. Anderson v. Jackson, 16 Johns., 382; Page on Wills, section 542.
    We insist that it is to he inferred from the will itself, which makes no distinction or difference between the $4,000.00 given to the widow for life and the real estate, that the period of distribution was not the testator’s death. Mead v. Maben, 131 N. Y., 255; Lee v. Welch, 163 Mass., 312; Baker v. McGrew, 41 Ohio St., 113.
    We are unable to see the pertinency of the case of Sinton v. Boyd, 19 Ohio St., 35, cited by plaintiff in error. It decides only that words of survivorship should be referred to the period appointed by the will for payment or distribution, unless a contrary intention is evinced by the language of the will. Lawrence v. McArthur, 10 Ohio St., 38.
    In England, the rule formerly was to apply the survivorship to those living at the date of testator’s death. It went so far as to hold that it would not abply to a devise to two as tenants in common because there was no survivorship between such tenants. 2 Jarman, 721. But the rule has long been regarded as unsatisfactory. 2 Jarman on Wills, 736.
    In this connection we call attention to what is sáid by the court in Parish v. Ferris, 6 Ohio St., 563, and on, touching the English rule in the case then under consideration, that the English rule had never been recognized in the state of Ohio, and saying that the English rule is clearly to defeat what every person must acknowledge is the real and the lawful intention of testators, etc.
    We do not understand what is said in the brief of the plaintiffs in error touching the vesting of the estate in the lands or its application to the case here. Every determinable fee vests in the first taker to be divested, etc. Every base or qualified fee, which may be determined, vests in the first taker. The vesting is according to the title. It may be good forever or it may end.
    Neither is the doctrine that favors the heirs at law applicable. The plaintiffs, though heirs at law of the testator, claim as heirs at law of Huldah and Mary C., the devisees of the testator.
    In the ease of Davis v. Davis, 62 Ohio St., 411, the two daughters who were favored were the devisees as well as the heirs at law of the testator. In the case of Smith v. Bloch, 29 Ohio St., 488, which was the case of a deed, the survivors who took were those who survived the mother.
    Construing the whole will here, and giving to all the words the plain and ordinary meaning we find:
    1. That the two items one and three necessarily contemplate the future, certainly as to the $4,000.00 given to the wife for life and the disposition of the personal and real estate is not distinguished.
    2. That the survivors of the three, Sylvester, Huldah and Mary C., should inherit the property bequeathed to them, viz.: the real and personal property.
    It was bequeathed by the will which could take effect only from its probate, and of course, subsequent to the death of the testator.
    3. That to overcome the effect of these provisions of the will there must be found in the will other words or language to a contrary effect.
   Davis, J.

This is a petition in error to reverse the judgment of the circuit court on an appeal from the court of common pleas. The action is in partition, the plaintiffs claiming a share in certain real estate which was devised by their grandfather to the. defendant and his two unmarried sisters, Huldah and' Mary C., and to the survivor or survivors of them. Both sisters died intestate and without issue after the death of the testator and Ms widow. The defendant and his said sisters took under the will and occupied lands described in the petition until the death of the said sisters. The plaintiffs claim by descent from the said sisters, through their mother who died before the will was made. The provisions of the will are as follows:

Item First. I do first give to my wife, Mary M., the use of $4,000.00 during her natural life, and all the movable property she brought with her at the time of her marriage. At her death the said $4,-000.00 is to be divided between my son, Sylvester "W. and my daughters, Huldah and Mary C., share and share alike.

Item Second. I do give and bequeath to the heirs of my daughter Albina, now deceased, $800.00.

Item Third. I do give all the balance of my real and personal estate to my son, Sylvester W., and my daughters, Huldah and Mary C., to be divided equally between them, share and share alike.

Item Fourth. In case of the death of either one or more of the children named in item three, namely, Sylvester W., Huldah and Mary O., the survivor or survivors, shall inherit the property bequeathed to them, both in item one and item three, if more than one survivor, to be divided equally, share and share alike.

The question is: Does the survivorship mentioned' in the fourth itém of the will relate to the time of the death of the testator, or to the time of distribution, or to the time of the death of any of the devisees there named?

In England from an early period to the present time and quite generally in the. United States, a .prevailing rule of construction has been that when the word “survivor” occurs in a will, the survivorship is understood to relate to the time when the will shall take effect, that is, the time of the testator’s death, unless a contrary intent is shown in the will. This is not an arbitrary rule, as counsel for the defendant seem to think. It is based upon clear and satisfactory reasoning. Unless it fairly appears from the will that he does not do so, the testator must be presumed to be contemplating and provide ing for the devolution of his property at the time of his death. Therefore when a testator devises or bequeaths to two or more jointly,, it is understood that the devise or legacy takes effect immediately upon his death, when the estate vests in the devisee, or at the period of payment or distribution, as. the case may be. If the will clearly discloses a different intention as to the time when devises shall vest or legacies be payable, such intention will of course control in the interpretation of the will. It seems conclusively to follow that when a testator provides merely that in case of the death of one or more of the devisees or legatees, the survivor or survivors shall take the provision made in the will, he refers to a survivorship which shall exist at the time a devise of real estate may vest or when a legacy may be payable.

But if a testator provides, for a survivorship on the happening of a contingent event, as “in case of the death of A-without issue,” the survivorship may take effect at or after the testator’s death according to the time of the ■ happening of the contingency. And such a devise will vest a determinable fee in the first takers and on the happening of the contingent event will vest an absolute fee simple in the survivor or survivors, by way of executory devise. Without exception the cases relied upon by the counsel for the defendant are of this class, and are therefore clearly distinguishable from this case. Here' the will provides, in item fourth, that “in case of the death of either one or more of the children named in item three * * * the survivor or survivors shall inherit the property bequeathed to them both in items one and three.” It does not say “in case of the death,” etc., with a specified contingency, as, “without issue,” “without legitimate heirs,” “unmarried,” which would plainly refer the survivorship to the time of the death of the devisees or legatees; but it is merely provided that in case of the death of one or more pf the children named, the survivor or survivors shall take. “In case of death” is equivalent to “if death occurs.” Now there is no “if” or contingency in death. Nothing is more certain to happen; but when will it happen? No man can foretell the time. Hence the defendant insists that the language-of the will must be interpreted as if it read “at the death of,” whenever it may occur. This construction disregards the most obvious canons of criticism and interpretation. It forces and entirely changes the meaning of the language of the testator. His words are “in case of the death.” As the death was absolutely certain, he must have used the contingent form of expression in contemplation of the contingency of death at a certain period. He does not name that point of time; and therefore, for the reasons already stated, he must he presumed to refer to the time from which the will speaks, the time when his bounty takes effect, the time of his own death. It is only when the language of the will manifestly requires a different construction that this rule does not apply.

The construction which we give to this will is supported by a large number of authorities, many of which are cited for the plaintiffs, including Lawrence v. McArter, 10 Ohio, 37, and Sinton v. Boyd, 19 Ohio St., 30.

The interest in the real estate which the two sisters of defendant, Huldah and Mary C., took under the will was an estate in fee simple; and since they died seized thereof, intestate and without issue, it passed by descent to the plaintiffs and defendant as-their heirs and next of kin.

It follows that the judgment of the circuit court is erroneous and therefore it is reversed and judgment is rendered for the plaintiffs as prayed in their petition.

Judgment accordingly.

Spear, C. J., Shauck, Price, Crew and Summers, JJ., concur. .  