
    Rieck et al. v. Richards et al.
    
      (Decided February 9, 1931.)
    
      Mr. Charles L. Hechel and Messrs. Franks S Franks, for plaintiffs.
    
      Messrs. Peck, Shaffer & Williams, Mr. Jos. W. O’Hara, Mr. G. F. Osier and Messrs. Roberts, Min-ten & Tennenbaum, for defendants.
   Ross, P. J.

This case, being an action to construe a will, comes into tbis court on appeal from the court of common pleas of Hamilton county.

A motion was made to dismiss tbe appeal on the ground that tbe case is not one in chancery and- tbis court bas no jurisdiction on appeal. Tbis question was raised in Ohio Savings Bank & Trust Co. et al., Exrs., v. Clark, 1 Ohio App., 6, and we agree with the Lucas county Court of Appeals in holding that, for many years chancery courts were called upon to, and did, construe wills, and that such a proceeding is appealable.

The motion to dismiss the appeal will be overruled.

We are called upon to construe the will of Allan C. Richards, which is as follows:

“In the name of the Benevolent Father of All.

“I, Allan C. Richards, do make and publish this my last will and testament,

“1. It is my will that all my just debts and funeral expenses be first paid out of my estate.

“2. I direct that all the goods and chattels belonging to my estate shall be sold by my executors, in the manner provided by law.

“3. All the rest and residue of my estate, real, personal and mixed, after the payment of my debts and funeral expenses, I give, devise and bequeath to my Executors hereinafter named, and to the survivor of them, in trust however for the following uses and purposes. They shall take charge and control of my estate, collect the rents and income arising from same, pay all taxes and charges, that may be levied or assessed against my said estate, and pay all necessary expenses connected with the administration and management of my estate, and out of the net income of my estate, pay

“First — To my wife, Catherine Richards the sum of Seven hundred and twenty dollars per year, in equal installments to be paid to her in equal quarterly installments at the times herein below specified; and this to be in lieu of dower, and all other claims, and allowances against or out of my estate.

“Second1 — The balance of the net income of my estate shall be divided quarterly at the times herein below specified among my four children, Ida P. Batement, Allan C. Richards, Charles E. Richards, and Ella O. Rieck, in equal portions, share and share alike, and upon the death of my wife the whole of the said net income of my estate shall be thus divided among my children, and upon the death of any of my children leaving issue, his or her child or children shall succeed to the father or mother’s share, and upon the death of the last survivor of my children, the trust herein created shall cease, and my estate vest in my grandchildren, per stirpes and not per capita. * * *

“4. I direct that my executors shall pay over to my wife and children, the respective quarterly installments of the net income of my estate, which may become due to each under the provisions of this will, on the 10th day of June, the 10th day of September, the 10th day of December and 10th day of March of each year, the first payment to be made on the first of said dates which shall occur after my decease.”

The testator was survived by his widow and four children. Two children are still living. One of the deceased children of the testator, Allan C. Richards, had three children: Ida Curley, Grace Richards, and Burt Allan Richards. Grace died in 1918, and, as far as appears to the contrary in the agreed statement of facts, intestate and without issue. Burt Allan Richards died in 1911, leaving one child, Mildred R. Pennell.

The administrators say in the petition that they are in doubt as to the true construction of the will— as to whether Mildred R. Pennell, great granddaughter of the testator, shall share in this estate as to the income and distribution.

A portion of the chart appearing in the agreed statement of facts illustrates more clearly the exact nature of the dilemma presented by the administrators :

Ida Curley, a granddaughter of the testator, claims that as to income she takes the entire share of her father, Allan C. Richards, Jr., to the exclusion of Mildred R. Pennell, a great granddaughter of the testator. She also claims that as the sole surviving child of her father she will take his share in the distribution of the corpus of the estate after the death of the last child of the testator.

Mildred E. Pennell claims that the testator intended the shares of his four children, the income and corpus, to descend to their issue, each child or grandchild, children, or grandchildren, great grandchild, etc., to take the interest of its or their deceased parent; distribution in every case to be made per stirpes and not per capita.

This would mean that of the income Ida Curley would receive one-half of one-fourth, or one-eighth, and, if living at the time of the death of the last child of the testator, one-half of one-fourth, or one-eighth, of the corpus of the estate, and Mildred Pennell would receive the same share as the child of Burt Allan Eichards, the brother of Ida Curley.

"Without at length setting forth the authorities, the well-settled rules of construction require us to ascertain the intention of the testator from the language of the will, giving, if possible, to the words used a meaning that will avoid intestacy, vesting the interests at as early a date as is consistent with the expressed intention of the testator, and withal •remembering that we are not forced to give language a technical construction unless the intent of the will clearly requires it, and that words are flexible and capable of many shades of meaning.

Let us take the rigid construction first: “Upon the death of any of my children leaving issue, his or her child or children shall succeed to the father or mother’s share.”

It is claimed this means that only the child of the child of the testator can take the income. “Issue” thus would mean only child or children of the testator ’s children. Then if the testator’s children had died leaving children, and these in turn had died leaving children, as is the case with Mildred R. Pennell, they cannot take, because they do not come within the strict interpretation of child or children of the “issue” of the testator’s children.

On the contrary, by giving the word “issue” an interpretation often assigned to it, that of lineal descendants, intestacy, which could easily occur under the rigid construction, is avoided, a perfectly reasonable construction of the will is provided, and an intention entirely consistent with what we would normally expect of a testator, having in mind the ordinary contingencies of life, is developed out of the language of the will.

As between such alternates, we hold a chancellor has but one choice. We give the language used the meaning we consider present in the mind of the testator, and read the will as providing that in the event of the death of any child of the testator, any issue — that is, lineal descendant — shall take the share of its deceased father or mother, and thus Mildred R. Pennell, being a lineal descendant, issue of Allan C. Richards, Jr., a child of the testator, takes the share of her father, who, with Ida Curley, divided the share of the testator’s child, Allan C. Richards, Jr.

See Words and Phrases, First, Second and Third Series, “Issue,” for many authorities construing this word as descendants.

It is interesting to note that if Ida Curley’s construction be correct, in the event of her death, the whole share of Allan C. Richards, Jr., would be rendered intestate.

We are also called upon to construe the meaning of that portion of the will disposing of the corpus of the estate, “and upon the death of the last survivor of my children, the trust herein created shall cease, and my estate vest in my grandchildren, per stirpes and not per capita.”

Here, again, a rigid construction of the word “grandchildren,” as meaning the children of the testator’s children, only produces results which we consider wholly contrary to the testator’s intention.

Manifestly there can be no vesting of the corpus until the death of the last child of the testator. Again we revert to the whole will and conclude that it is manifest that the testator wished the shares of his children to descend to the “issue” — the lineal descendants — of his children,, to his “grandchildren,” without regard to any number of prefixes, great or great-great.

As a general rule the word “grandchildren” is a word of definite meaning, limited to children of children; but where the manifest intention of the testator, as gained from the whole will, requires an extension of the meaning past the strict limitations, a court of chancery is amply warranted, and is, in fact, required to so extend the meaning.

It is inconceivable that any authoritative pronouncement of a court will be found exactly decisive of the question presented in a case involving the construction of a will. Very probably, if such authority existed, no case would be presented. Each will differs slightly or greatly from another, according to its entire contents, Wo cite the case of Ball v. Weightman, 273 Pa., 120, 116 A., 653, not as an all-embracing authority, but in support of what we have heretofore said. The first paragraph of the syllabus of that case reads: “The term ‘grandchildren’ may or may not embrace great-grandchildren according to the meaning of the testator to be ascertained from an examination of the entire will.”

We, therefore, construe the will of Allan C. Richards to provide that the net income of the estate shall be divided among his children, if living, and upon the death of any child, to its children, taking per stirpes; and upon the death of any grandchild (issue, lineal descendant) its child or children again taking per stirpes the interest of the descendant parent. Upon the death of the last of the testator’s children, the corpus of the estate shall be distributed among his then living grandchildren; if any grandchild has died leaving child or children, these shall take per stirpes the interest of the parent descendant, and in like manner to great, great grandchildren, if necessary, to vest in the descendants the per stirpes interest of the parent descendant of the testator.

A decree may be entered accordingly.

Decree accordingly.

Hamilton and Cushing, JJ., concur.  