
    WILLS.
    [Wood (6th) Circuit Court,
    October 28, 1911.]
    Wildman, Kinkade and Richards, JJ.
    
      Frank White (Admr.) v. John White et al.
    Determination as to Amount Widow of Deceased Son Should Receive Where Son Died Before Testator.
    Under the provisions of the will construed in this case, the widow of the deceased son is held to be entitled to receive the share which would have gone to the said son had he survived the testator, less the amount specially provided to be paid by her in the codicil appended to the will after the death of said son.
    [Syllabus by the court.]
    Appeal.
    
      Rheinfrank & Ohlinger and Edward Beverstock, for plaintiff.
    
      Edgar H. Johnson and Jos. W. Lane, for defendants:
    Cited and commented by the following authorities : Worman v. Teagarden, 2 Ohio St. 380; Fainter v. Painter, 18 Ohio 247; Charch v. Charch, 57 Ohio St. 561 [49 N. E. Rep. 408] ; Richards v. Miller, 62 111. 417; Armistead v. Armistead, 32 Ga. 597; Defreese v. Lake, 109 Mich. 415 [67 N. W. Rep. 505; 32 L. R. A. 744; 63 Am. St. Rep. 584]; Gilmore, In re, 154 Pa. St. 523 [26 Atl. Rep. 614; 35 Am. St. Rep. 855] ; Bates v, Alexander, 127 Ala. 32S [28 So. Rep. 415] ; Grimms v. Harmon, 35 Ind. 198; Davis v. Taul, 36 Ky. (6 Dana) 51; Miller v. [Miller; 29 O. C. C. 451 (9 N. S. 242); Weston v. Wbston, 38 Ohio St. 473; Eby’s Appeal, 84 Pa. St. 241; Hochstein v. Berghanser, 123 Cal. 681 [56 Pac. Rep. 547] ; St. Mark’s Lodge afi F. & A. M. v. Darrow, 16 Dec. 120; Jones v. Lloyd, 33 Ohio St. 572; Reif v. Ulmer, 20 Dee. 342 (9 N. S. 234) ; Lincoln v. Perry, 149 Mass. 368 [21 N. E. Rep. 671; 4 L. K. A. 215] : Clark v. Hardwick Seminary (Tr.), 2 Giro. Dee. 87 (3 R. 152); Lester’s Estate, In re, 115 Iowa 1 [87 N. W. Rep. 654].
    
      
      Affirmed, no op., White v. White, 88 O. S. 589.
    
   RICHARDS, J.

This is an action brought for the purpose of obtaining a construction of the will of Henry Rudolph White, deceased. The will was executed on July 23, 1894, on which date the testator had five children then living. The will, after making various preliminary dispositions of property, contains the following clause:

“The remainder of my estate, real and personal, shall be divided equally between my children or their heirs share and share alike.”

One of the children of the testator by the name df Henry White died intestate on June 3, 1895, without issue, but leaving surviving him a widow, Rose White. On December 21, 1895, the testator, Henry Rudolph White, executed a codicil to his will, which codicil contains the following language:

‘ ‘ The sum of $88 lawful money of the U. S. bearing interest at 6 per cent, from the first day of July, 1895, till paid shall be paid to my daughter Carolina White, her heirs or assigns, out from the share of the inheritance of my son Henry White, deceased. The residue of said share shall be the only bequest to the heirs or assigns of said Henry White.”

Held: That under the terms and provisions of the will and codicil, the widow, Rose White, is entitled to receive the share which would have gone to her husband, Henry White, if he had survived the testator, less the sum of $88 and interest thereon as provided in the codicil.

This construction of the will is not changed by the extrinsic evidence offered. So much of that evidence as tends to show the situation, circumstances and condition of the testator and the natural objects of his bounty, is competent, the remaining portion of it we hold to be incompetent, and we cite the following cases: Lester’s Estate, In re, 115 Iowa 1 [87 N. W. Rep. 654]; Lincoln v. Perry, 149 Mass. 368 [21 N. E. Rep. 671; 4 L. R. A. 215]; Clark v. Hardwick Seminary (Tr2 Circ. Dec. 87 (3 R. 152).

A decree may be drawn construing the will in accordance with the views expressed in this opinion.

Wildman and Kinkade, JJ., concur.  