
    ADOPTION — WILLS.
    [Greene (2nd) Circuit Court,
    1912.]
    Dustin, Allread and Ferneding, JJ.
    Charles H. Moon, Admr. v. Jennie Harness et al.
    1. Devise Making Granddaughters Equal Heirs with Children of Testatrix is Dispositive.
    A devise making “my two granddaughters,” naming them, “each equal heirs with my own children” is dispositive and evidences an intention of testatrix to devise her property in equal shares to such grandchildren and her children.
    [Syllabus approved by the court.]
    Appeal from common pleas court.
    
      Manus Shoup. for plaintiff:
    Cited and commented upon by the following authorities: Williamson, In re, 6 Dec. 505 (5 N. P. 1) ; Crane v. Doty, 1 Ohio St. 282; Page, Wills Sees. 2, 45, 48; Coffman v. Coffman, 85 Ya. 459 [8 S. E. Rep. 672; 2 L. R. A. 848; 17 Am. St. Rep. 69] ; 1 Rockel, Sec. 1013; Baker v. Baker, 51 Ohio St. 222 [37 N. E. Rep. 125] ; Mathews v. Krisher, 59 Ohio St. 562 [53 N. E. Rep. 52] ; Bane v. Wick, 14 Ohio St. 508; Gibson y. McNeely, 11 Ohio St. 152; 2 Jarman, Wills 741; Needles v. Needles, 7 Ohio St. 445 [70 Am. Dee. 85]; Gano v. Fisk, 43 Ohio St. 469 [3 N. E. Rep. 532; 54 Am. Rep. 819]; Phipps v. Hope, 16 Ohio St. 586; Carter v. Beddish, 32 Ohio St. 12; Beinhard v. Bein
      
      hard, 15 Dec. 741 (3 N. S. 280) ; Remsen, Wills 343; Cotton v. Cotton, 127 U. S. 310 [8- Sup. Ct. Rep. 1164; 32 L. Ed. 138] ; Mader v. Apple, 18 Dec. 801 (6 N. S. 592) ; Sears v. Sears, 77 Ohio St. 104 [82 N. E. Rep. 1067; 17 L. R. A. (N. S.) 353] ; Townsend v. Townsend, 25 Ohio St. 477 [1 N. E. Rep. 594]; McEelvey v. McEelvey, 43 Ohio St. 217 [1 N. E. Rep. 594]; Young, In re, 123 Oal. 338 [55 Pac. Rep. 1011] ; Sturgis v. Work, 122 Ind. 134 [22 N. E. Rep. 996; 17 Am. St. Rep. 349]; Burke v. Lee, 76 Ya. 386; Bailey v. Bailey, 59 Mass. (5 Cush.) 245; Coon v. DeMoore, 25 O. C. C. 776 (2 N. S. 444); Stewart, In re, 147 Pa. St. 383 [23 Atl. Rep. 599] ; Wilkins v. Allen, 59 U. S. (18 How.) 385 [15 L. Ed. 396]; Walker v. Parker, 38 U. S. (13 Pet.) 166 [10 L. Ed. 109] ; Pendleton v. Larrabee, 62 Conn. 393; Bill v. Payne, 62 Conn. 140; Downing v. Bane, 24 Ga. 372; Wilder v. Holland, 102 Ga. 44 [29 S. E. Rep. 134] ; Andrews v. Harron, 59 Kan. 771 [51 Pac. Rep. 885] ; Howard v. Peace Society. 49 Me. 288; Mullarky y. Sullivan, 136 N. Y. 227 [32 , N. E. Rep. 762}; McIntyre v. Ramsey, 23 Pa. St. 317; Hoover v. Gregory, 18 Tenn. (10 Yerg.) 444; Wootion v. Redd, 53 Ya. (12 Gratt) 196; Bell, In re, 147 Pa. St. 389 [23 Atl. Rep. 577] ; Barnilz v. Casey, 11 U. S. 454 [3 L. Ed. 403] ; Davis v. Davis, 62 Ohio St. 411 [57 N. E. Rep. 317; 78 Am. St, Rep. 725] ; Geery v. SkeldAng, 62 Conn. 499 [27 Atl. Rep. 77]; Fahnestock, In re, 147 Pa. St. 327 [23 Atl. Rep. 573]; Linlon v. Laycock, 33 Ohio St. 129; Brush v. Ware, 40 U. S. (15 Pet.) 93 [10 L. Ed. 672] ; Denn ex Dem v. Gaskin, 2 Cowper 329.
    
      Wiliam S. Howard, for appellants:
    Cited and commented upon by the following authorities: Page, Wills Secs. 43, 44, 45, 48, 49; Smith v. Bell, 31 U. S. (6 Pet.) 68 L8 L. Ed. 322] ; Townsend v. Townsend, 25 Ohio St. 477; King v. Beck, 15 Ohio 561; Woodruff v. Woodruff, 13-23 O. C. C. 408 (3 N. S. 616) ; American Tract Soc. v. AUuater, 30 Ohio St.. 77 [27 Am. Rep. 422]; Gates v. Pond, 5 Circ. Dec. 297; Jones v. Lloyd, 33 Ohio St. 572; Stevenson v. Evans, 10 Ohio St. 310; Carter v. Reddish, 32 Ohio St. 1; Bane v. Wick, 19 Ohio 328; Williamson, In re, 8 Dec. 47 (6 N. P. 79); Robi~ 
      
      son v. Orphan Asylum, 123 TJ. S. 702 [8 Sup. Ct. Rep. 327; 31 L. Ed. 293]; Metcalf v. Framingham Parish, 128 Mass. 370; Colton v. Colton, 127 U. S. 309 [8 Sup. Ct. Rep. 1164; 32 L. Ed. 138] ; Shaw v. Hoard, 18 Ohio St. 277; Tilley v. Collyer, 3 Keg. 589; 2 Jarman, "Wills 109; Crane v. Doty, 1 Ohio St. 279; Bane v. Wich, 14 Ohio St. 508; McDonald, hi re, 4 Dee. 396 [2 N. P. 232].
   FERNEDING, J.

(Orally.)

The question for the consideration of the court in this ease is the construction of the last will and testament of Clara Moon, deceased, particularly item two thereof which reads as follows:

!‘I hereby make my two granddaughters, Lulu Stewart and Ella Breakfield, each equal heirs with my own children. ’ ’

In the will, which was duly probated, one Frank Stewart was named as executor, but he declined to serve, and the court thereupon appointed Charles Moon, the plaintiff, as the administrator with the will annexed, and it is he, as said administrator, wrho brings this action under authority of Gen. Code 10587, to have said will construed. Under provisions of Gen. Code 10503, a person of full age, of sound mind and memory, and not under restraint, who has property or an interest therein, may give and bequeath it by last will and testament lawfully executed.

Gen. Code 8598, provides the method by which a person can designate an heir at law, and is as follows:

“A person of sound mind and memory may appear before the probate judge of his county, and in the presence of such judge and two disinterested persons of his or her acquaintance, file a written declaration, subscribed by him, which must be attested by such persons, declaring that, as his or her free and voluntary act, he or she did designate and appoint another, naming and stating the place of residence of such persons specifically, to stand toward him in the relation of an heir at lawr in the event of his or her death. If satisfied that such declarant is of sound mind and memory, and free from restraint, the judge thereupon shall enter that fact upon his journal, and make a complete record of such proceedings. Thenceforward the person thus designated will stand in the same relation, for all purposes, to such declarant as he or she could, if a child born in lawful wedlock. The rules of inheritance will be the same, between him and the relations by blood of the declarant, as if so bom; and a certified copy of such record will be prima facie evidence of the fact stated therein, and conclusive evidence, unless impeached for actual fraud, or undue influence.”

It is the contention of the defendants, the appellees,

First, that the will in designating Lulu Stewart and Ella Breakfield as “equal heirs with my own children,” was not in compliance with the foregoing statute quoted, which defines the procedure necessary for'such adoption, and, therefore, without avail.

Second, that said will not being dispositive in character as to said grandchildren, they are denied participation in the estate.

As to the first, we hold to the view it is not necessary to formally adopt under the statute to constitute an heir. One may designate by will who shall receive his property as by right of heirship.

As to the second, we think the will is dispositive and that • the manifest intention of the testatrix is to make her two grandchildren equal heirs with her own children in the distribution of the estate.

The court below in deciding the case seemed to rely largely upon the case of Crane v. Doty, 1 Ohio St. 279.

This ease holds that mere words of exclusion are not sufficient to direct the disposition of other persons not included. The present will, in our opinion, goes farther than the case of Crane v. Doty, supra, and shows an intention to dispose of the property to the persons named.

We are not without authority in holding this will to be dispositive. In the case, Williamson, In re, 8 Dec. 47, 48 (6 N. P. 79), the paper which was presented for probate was as follows:

“I, the undersigned, George H. Williamson, citizen of the United States of America and of the state of Ohio, legally
domiciled in the city of Cincinnati, Ohio, hut sojourning at present in Paris, France, 182 Boulevard Saint Germain, for^ reasons of health, sick in body but of sound mind, at the moment of appearing before God, do solemnly declare that I have always intended to return to my country and that the bad state of my health has prevented me from doing so. I declare that I am still a citizen of the state of Ohio and subject to its laws. I further solemnly declare, that the two persons who live, and have always lived* with me and with their mother, under the names of Georgette and Henriette Williamson, are my ligitimate daughters, living with me at 182 Boulevard, Saint Germain, Paris. I declare further that I expressly revoke all testamentary dispositions that I have made up to this day.
In testimony whereof I have signed and sealed these presents this fourth day of December, 1896.”

This instrument was properly signed and witnessed according to law, and it was held in the lower court, in Williamson, In re, 6 Dec. 505 (5 N. P. 1), not to be a paper of a testamentary character. The common pleas court held, however, that it was, and even if they were in dctabt about that matter, that being & paper properly executed, it should have been admitted to probate.

In the case of Benchley v. Lynn, 2 Rob. Ecc. 441, the language of the document in question was as follows:

“ Whereas I am desirous of revoking and making void my said will and disposition aforesaid, and to die intestate in order that all my property, both real and personal may go to and devolve upon my heirs or next of kin,
Now, Therefore, I, the said Elizabeth Lynn, do by this instrument in writing revoke, annul and make void my said will in hoto, so that I may die intestate, both as to my real and personal estate. It was held that this instrument is not merely revocatory. It is dispositive as well as revocatory. I consider it to contain a bequest of the property and to the next of kin; it would have defeated any limitation to other persons, if such had been appointed by Mrs. Minnett’s will. Undoubtedly Mrs. Benchley takes the property under this paper as a legatee and must pay duty as a legatee; I can not see how she could possibly take the oath as in case of intestacy. * * * Intestacy can only arise when a person dies without legally bequeathing his property, that is, without a will. If a man by will declares he dies intestate and that his property shall go in case of intestacy, such paper does not constitute an intestacy, but a bequest of the property to personae designatae designated by the statute as it might be by any other description. The property in the present instance goes not in virkue of the statute, but in virtue of the will, exactly as if the ultimate limitation in Mrs. Minnett’s will had been to A B and not to the next of kin. That the property would go by the statute in the same direction as by the will, can not divest it of the character of being property bequeathed by will.”

In the case of Bailey v. Bailey, 59 Mass. (5 Cush.) 245, we find the following:

“The term ‘will’ under the statute of 1843, Chap. 92, including every kind of testamentary act taking effect from the mind of the testator and manifested by an instrumént in writing. ’ ’

An inhabitant of this state while in the city of New York on a visit, being sick and in apprehension of death, executed an instrument in the presence of two witnesses, who attested it at his request, in the following terms:

‘It is my wish that the will that I made be destroyed and my estate settled according to law.’

Before signing his name thereto, the paper was read aloud to the testator and he was asked if it would answer, to which he replied that it would. Held, That this instrument was executed in the manner and with the formalities prescribed by law to admit it to probate in the state of New York, as a testamentary instrument or codicil, and that, therefore, under the statute of 1843, Chap. 92, Par. 1, it might be proved, recorded and proceeded in as such in this state.”'

It is held in the case of Townsend v. Townsend, 25 Ohio St. 477, in the first, second, third and fourth syllabi, as follows:

1. “In the construction of a will, the sole purpose of the court should be to. ascertain and carry out the intention of the testator.
2. “Such intention must be ascertained from the words contained in the will.
3. “The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.
4. “All the parts of the will must be construed together, and effect, if possible, given to every word contained in it.”

In the case at bar we are of the opinion that the will is dispositive. It shows an intention on the part of the testatrix that her property should go equally to the persons referred to as devisees therein.

Decree accordingly.

Dustin and Allread, JJ., concur.  