
    Mathews et al. v. Krisher et al.
    
      Statute of descents operates on all intestate property.
    
    The statute of descents operates upon all intestate property, and the course which it indicates can be changed only by a testamentary disposition.
    (Decided February 4, 1899.)
    Error to the Circuit Court of Hardin county.
    Mathews and numerous other plaintiffs brought suit in .the court of common pleas, against MrKrisher and numerous other defendants, the material parts of their petition being as follows:
    Plaintiffs allege for their cause of action herein*
    That Smiley Mathews, a resident of Hardin county, state of Ohio, died testate on or about the eighteenth day of February, A. D. 1868; that he died seized in fee simple of the following described real estate, situated in Cessna township, Hardin county, state of Ohio, and being more particularly described as follows, to-wit: (Particular description.)
    The said Smiley Mathews, on the first day of February, A. D. 1868, duly made, executed, published and declared his last will and testament, the following of which is a true copy, as follows, viz.:
    Item 1st. It is my will that my just debts and all charges be paid out of my estate. I give and devise my beloved wife, as her dower, all my real estate, and all my chattel property, moneys and credits, as long as she shall live.
    On the fourth day of March, 1868, the aforesaid will was duly admitted to probate and recorded in the Record of Wills, in the Records of the Probate Court, Kenton, Hardin county, Ohio, as provided by law.
    The said testator left his widow, Phebe Mathews, surviving him; said widow died on the second day of February, 1895; said testator, by the provisions and terms of his said last will and testament, limited his widow, Phebe Mathews, aforesaid to a life estate in all his property, both real and personal; said widow occupied, enjoyed and had the exclusive possession and use of said lands and tenements, herein before described, and of which her husband, Smiley Mathews, died seized from the date of the death of her said husband, the aforesaid testator, until the date of her death. No ' dower was assigned to her as such widow in said lands and tenements.
    Plaintiffs allege that said testator, Smiley Mathews, died leaving no heirs of his body begotten, neither the representative of such heirs, who might by any possibility inherit the aforesaid real estate.
    But said testator, Smiley Mathews, did leave surviving him the following named persons, who are his next of kin by consanguinity and entitled to inherit from said Smiley Mathev s, deceased, and are the owners in fee simple by such inheritance, of said lands above described, and of which said Smiley Mathews dies seized, and that said persons hereafter named, are entitled to the immediate possession of said l'ands and tenements by .reason of such inheritance and the death of said widow, subject, however, to the cost of administration which may yet accrue in the due course of settlement of said estate.
    (Then follow averments as to the interests or shares of the several plaintiffs.)
    
      Plaintiffs further allege that the above named defendants, Emily Wetherill and Jennie M. Krisher, together with her husband, Milton E. Krisher, who resides in Hardin county, Ohio, claim some interest in said lands of which the testator, Smiley Mathews, died siezed; that the nature of said claim, and the facts constituting the same, are to plaintiffs, not sufficiently known in order that they may be set forth the same in this petition, as contemplated by law.
    That on the nineteenth day of August, 1895, the defendant, William J. Mathews, was duly appointed and qualified as administrator de bonis non with the will annexed, of the estate of said Smiley Mathews, deceased, and entered upon the discharge of his duties pertaining to said trust,
    Wherefore, plaintiffs pray that summons issue to said defendants, and that they be required to answer and set up their claim and interest and facts constituting the same, in or to said lands or be forever barred from prosecuting or enjoying the same.
    Plaintiff further allege that the said defendants, Emily Wetherill and Jennie M. Krisher, with her husband, Milton, E. Krisher, have had possession of said lands since the death of the widow of said Smiley Mathews, as aforesaid, without the consent of these plaintiffs.
    Wherefore, said plaintiffs pray a judgment of ouster against said defendants, and that possession be decreed to plaintiffs.
    Plaintiffs further pray that a summons issue to William J. Mathews, the administrator de bonis non, with the will annexed, of the estate of said Smiley Mathews, deceased;'that he be required to answer and set up the amount of personal property in Ms possession, or that may be available to pay the aforesaid legacies, costs of administration, etc.; and that due and legal notice to be given to all other defendants of the pendency of this cause as contemplated by law and mentioned in this petition.
    Plaintiffs pray for partition of said lands and tenements, and that their interests be set off to them in severalty, or if that cannot be done without manifest injury, that such proceedings may be had as are authorized by law.
    General demurrers interposed to this petition were sustained and the plaintiffs not desiring to plead further the petition was dismissed at their, costs. In the circuit court the judgment of the common pleas was affirmed.
    
      W. D. Mathews; Derr da Corbett and Charles C. lemert, for plaintiffs in error.
    The plaintiffs contend:
    1. That the testator by his said will created all his property, real and personal, into a dower estate, a limited estate; and again by words of express limitation limited the same to her for the period of her own life. Not by mere words of exclusion, but by the creation of an interest. Crane v. Doty's Exrs., 1 Ohio St., 279.
    2. That all of said estate having been created into a dower estate and being limited to her for and during the period of her own life, no estate of inheritance ever vested in her, nor could she convey a greater estate than she herself had. ■
    Conveyance of fee by life tenant will only carry a life estate. Carpenter v. Denoon, 29 Ohio St., 379.
    3. That all the interest of said testator having by the terms of said will been created into a dower estate and limited to her during her own life, there was no interest or estate remaining belonging to said testator which she as his widow could inherit during her life.
    4. That by the rules of inheritance in Ohio it is necessary that the person inheriting real property should be in being at the time of such inheritance, otherwise no fee or other property rights can vest in that person after having departed this life.
    5. That by reason of such limitation and the fact that the said testator left no children nor their representatives, the remainder or fee immediately vested in the brothers and sisters of said testator and their representatives at the time of his death subject to the testamentary dower estate of the widow and the legacies bequeathed by said testator. Jones et al. v. Robinson et al.. 17 Ohio St., 180.
    The interests or estate of the widow having been defined and limited by the will, the- statutes of descent must fix the persons who have the next expectant estate therein. Section 4159, Revised Statutes.
    6. As to what the plaintiffs mean by the limitation of an estate, we respectfully refer the court to that old but substantial and reliable authority: —Sharswoods Blackstones Commentaries, 1 vol., p. 513, sec. 155; Hopkins on Real Property, page 127.
    A limitation determines the estate vpsofaeto, without entry it is conclusive of the time of continuance and of the extent of the estate granted and beyond which it is declared at its creation not to be continued. Williard on Real Property, page 520-102.
    Words in a will are to be understood according to their ordinary, natural and legal sig-nificance unless it is manifest from the context or from other provisions in the will that the testator has used them in a different sense and unless the sense in which they were used is clearly apparent. 32 Ohio St., 1; Bradhurst v. Bradhurst, 1 Page, 331; Rathbone v. Dyckman, 3 Page, 9; Kingsland v. Rapely, 3 Edw., 1; 25 Ohio St., 477; Williard on Real Property, page 48; 17 Ind., 74; Townsends Exrs. v. Townsend et al., 25 Ohio St., 487; Weston v. Weston, 38 Ohio St., 478.
    Technical words must be construed in a technical sense and should have their strict technical meaning unless it appears that the testator used them in some other and secondary sense. Howe v. Fuller, 19 Ohio, 56.
    Are not then the words “All my real property” and “All my personal property moneys and credit” given as dower sufficient to limit the widow to a life estate in that property? Especially where such appears to be the intention of the testator by the use of the words, as long “as she shall live.” Piatt v. Sinton et al., 37 Ohio St., 353. As to what will pass fee. 6 Ohio St., 481.
    And the rule of law is, that when there is nothing in a devise from which a fee can be raised by implication, the devise takes only a life estate. Jackson v. Embler, 14 John’s 198; Witherspoon v. Dunlap, 1 McCord, 546; Gray v. Parker, 4 Watts, R. S., 17; Jackson v. Wells, 9 John’s, 222; Wheaton v. Andres, 23 Wend., 452.
    And this is the rule in Ohio. Gilpin v. Williams et al., 17 Ohio St., 396; Gilpin and wife v. Williams, 25 Ohio St., 283; Bashere v. McKinzie, 8 O. C. C., 682; 3 C. D., 679; 3 O. C. C., 152;2 C. D., 87; Hulse v. Hulse, 1 Cir. Ct. Rep., 362; 1 C. D., 202.
    
      Affirmed by the Supreme Court of Ohio, 20 W. L. Bull., 353; Davis et al. v. Corwin, et al., 25 Ohio St., 675; Colston v. Bishop, 1 C. C., 460; Hamilton county, 1 C. D., 257.
    In construing wills it is a universal rule that they are to be expounded favorable and according to the intention of the devisor. When this intention can be ascertained it shall prevail however defectively it may be expressed. Deckers Exrs. v. Deckers Exrs., 3 Ohio, 157.
    The cardinal rule in the construction of a.will is that it must be so construed as to carry into the effect, the meaning and intent as expressed in the instrument unless there be some statutory or technical rule preventiug it. Shaw v. Howard, 18 Ohio St., 227; Bane v. Wick, 19 Ohio, 328.
    The one having the next subsequent expectant estate or interest is the heir in this ease appointed by statute. The interests of the widow being-limited by the will. Jones v. Loyd, 33 Ohio St., 572; Lathrop et al. v. Young et al., 25 Ohio St., 463; 37 Ohio St., 468.
    In the construction of a will the intention of the testator must govern in all eases and the whole will must be construed together; the words and language used in the will; what the testator has said; his surroundings; the objects of his bounty, etc., may be taken into consideration. The intent governs no matter how defectively expressed.
    A will is a picture of a man’s kind. Brasher v. Marsh, 15 Ohio St., 108; Starlings Exrs. v. Price; 16 Ohio St., 29. Redfield on Wills, 2 Vol., page 409; Carter v. Reddish et al., 32 Ohio St. 1; Stokes v. Stokes, 12 Bull., 135; Clark v. Linch, 46 Barb., 68.
    So the plaintiffs contend in the case at bar must appear from the will that the testator intended the widow to have more else she can only hold her life estate.
    The intention of the testator is to be gathered from the phraseology of the will itself and to arrive at this intention it is necessary to look into the entire instrument. Edwards v. Rainers Exrs., 17 Ohio St., 597; Williams v. Veach, 17 Ohio St., 171; Beckwith v. Moore, 14 Ohio St., 121; Bowen v. Bowen, 34 Ohio St., 180; Hibbs v. Insurance Co., 40 Ohio St., 556; Williams Lessees v. Veach, 17 Ohio St., 171; King v. Beach, 15 Ohio St., 550.
    A gift to a wife for and during- her natural life to have and to hold and dispose of as she may choose without any provision as to the remainder created only a life estate. 68 Ind., 483; 53 Ind., 267.
    And the same is true where she is given power to dispose of it at her pleasure, at her death. 47 Ind., 425; American Report, 709; 43 Ind., 310; 83 Ky., 333; 15 B. Mon., 383.
    “The balance of my estate I wholly leave to my wife and to be disposed of by her and divided among my children at her discretion” was held to create a life estate only in the wife. 1 Met., 677; 21 Ohio St., 527; 23 Ohio St., 198.
    When the life estate created by the will and the fee begins (by descent) in the same person at the same instant there is no merger; nor take place when there is reason for keeping it separate. Cresfield v. Storr, 36 Maryland, 480, vol., 11; Phelps Exrs. v. Pond, 23 N. Y. Ct. of Appeals, Smith 9, page 62; Areson v. Areson, 3 Den., 458 rev’g, 5 Hill, 410; Vanderwerker v. Vanderwerker, 7 Barb., 221; Hawley v. James, 16 Wend., 61.
    Plaintiffs further contend, that by said election uin pais” the widow elected to take the provisions of the will with its limitations in addition to her statutory dower; and those claiming under her are estopped from denying- her election to take under the will with its limitations. Baxter, Admr., etc., v. Bower, et al., 19 Ohio St., 490; Thompson v. Hoop, 6 Ohio St., 480; Stockton v. Wooley et al., 20 Ohio St., 184; Fritz v. Fritz, 16 Ohio St., 218; Carder v. Commissioners, 16 Ohio St.
    Remainder men owning no interest in life estate, cannot maintain partition. Elrod v. Bass, 13 Bulletin, 463; 1 C. C. R., 38; 1 Circ. Dec., 23.
    And remainder men must be in possession or entitled to immediate possession, which could not exist so long as this estate for years was in existence, consequently an action for partition would not lie. Hence the motion for leave to file petition was overruled. Fabler v. Wiseman, 2 Ohio St., 207; Davison v. Wolf, 9 Ohio, 73; Morgan v. Staley, 11 Ohio, 389.
    So that no question of law could have been decided affecting the case at bar or the rights of these plaintiffs. The plaintiffs not being in possession, •nor having- the immediate right to possession could not maintain an action for partition.
    Brief of Henry J. May, for Jennie M. Krisher, defendant in error.
    We do not deem it necessary to submit a long brief in this case, for the one question presented is so simple and has been so well settled, that it would be presumptious for us to do so.
    The petition is silent as to whether the real estate claimed by the plaintiff, was an estate by purchase or otherwise, so that the court will have to make a guess and you are as liable to guess wrong as right, hence construing the petition most strongly against the pleader, you will guess it an estate by purchase.
    The widow of the decedent Smiley Mathews, would under section 4169, take the estate in fee simple, unless by the will of the testator it should go elsewhere.
    The will did not name any one to take the remainder and having failed to name some one to take the fee simple, the law carried it to the widow.
    The widow having acquired title under the law, the brothers and sisters of the decedent have no claim whatever. 1 Ohio St., 279; 1 Jar men, 315.
    This rule has been adopted as the law in Ohio. Bane v. Wick, 19 Ohio, 333; Gilpin v. Williams, 17 Ohio St., 396; 52 Penn. St., 269; 91 American Dec., 156.
    The legal heir can.only be disinherited by express devise or necessary implication so strong that a contrary intention can not be supposed.
    Intent to disinherit an heir is essential to raise' an estate by implication, the presumption being, in absence of plain words in the will to the contrary, that the testator intended that his property should go in the legal channel of descent and distribution. 56 American Dec., 451; 2 Cowd., 657; 2 Wend., 13; Ingraham v. Fraly, 15 Ga., 169; 3 Ind., 444; 44 Am. Dec., 241; 27 Am. Dec., 590.
    Brief of Thomas G. Mahon and Thomas B. Black, for Emily Wetherill, defendant in error.
    The question raised by the demurrers to the original petition of plaintiffs in error is, in our .opinion, simply a question that can be settled by applying to it section 4159 of the Revised Statutes, under which the widow of the decedent, Smiley Mathews, would become the owner of said lands in fee simple, unless by his will the title thereto was vested in some other person or persons. Weston v. Weston, 38 Ohio St., 473.
    Where a life estate only is devised the fee descends and becomes vested in the heir at law upon the death of the testator. 119 Ind., 525; 22 N. E. Rep., 4.
    Where the will contains no special provisions on the subject, the land of the deceased testator descends to his heirs. Brush v. Ware, 15 Pet., 93.
    That part of the estate of a testator, not disposed of by his will, when he dies without issue, descends to his widow. 13 Ohio St., 426.
    By the will of Smiley Mathews he gave to his widow in lieu of her dower in said premises, an estate during her natural life and as to the remainder therein he died intestate, leaving said remainder undevised to pass and vest under our Statutes of Descent, and we are of the opinion that as to said land, his will is wholly inoperative, for the reason that an heir shall not take by devise when he may take the same estate in land by descent. Barnitz v. Casey, 7 Cranch, 456.
    The widow of Smiley Mathews inherited more than a life estate in this land, the whole estate was vested in her by statute at his death. Bane v. Wick, 14 Ohio St., 508.
    We contend as follows:
    First — That Smiley Mathews, dying- without issue, left his widow as his only heir at law.
    Second — That as to an estate devised to her for and during her natural life he died testate; as to the remainder in said premises, he died intestate.
    Third — That upon his death said remainder was cast upon and vested in his widow.
    
      Fourth — That as to said remainder in said,premises there is no part of said Smiley Mathews’ will that the court is called upon to construe for the reason that the testator has made no reference to said remainder, nor attempted to dispose of it.
    Fifth — That the title to said premises never vested in plaintiffs in error and that consequently they have no right to partition thereof, against a person or persons in possession of said premises.
   Shauck, J.

The view presented on behalf of the plaintiffs, briefly stated, is that since Smiley Mathews devised the lands in question to his wife “as her dower” to be held by her “as long as she shall live,” making no further disposition thereof, he died intestate ah to the estate in remainder, and that these terms of the will limited her interest to an estate for life notwithstanding the provisions of section 4159 of the Revised Statutes; and that, therefore, the estate in remainder passed to them as “his next of kin by consanguinity.” The petition alleges that “Smiley Mathews died leaving no heir of his body begotten nor representative of such heir.” By not alleging that his estate in these lands was ancestral, it admits that he acquired them by purchase. Sections 4158, et seq. of the Revised Statutes provide for the descent of real estate in cases of intestacy. The pertinent provisions of section 4159 are: “If the estate came not by descent, devise or deed of gift it shall descend and pass as follows:

First, to the children of the intestate and their legal representatives;

Second, if there are no children or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate;

Third, if such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives. ”

This statute was in force when Smiley Mathews died. His estate in these lands, not having come to him by descent, devise or deed of gift, and he having died without children or their legal representatives, their descent as to any intestate interest therein was, by the second paragraph of the section, cast upon his wife. From the fact that it was not in force when his will was executed, it may be conjectured that he did not then intend that she should take more than a life estate in the lands. But it cannot be assumed against the terms of the will and the statute operating’ upon the lands at the time of his death that, if such was his intention, it remained unchanged. By its terms the statute operates in every case “when a person dies intestate having title or right to any real estate or inheritance in this state,” and there is no presumption of more obvious force or propriety than that the testator had knowledge of the change in the statute and acquiesced in the larger provision which it made for his wife. The comprehensive language in which the statute is made applicable to all cases of intestacy compels the acceptance of the rule, generally recognized, that the heir at law can be disinherited only by a devise of the property to another. Denn ex dem. v. Gaskin, 2 Cowper, 329; Crane et al. v. Doty et al., 1 Ohio St., 279.

Jicdgrnent affirmed.  