
    CONSTRUCTION OF WILL.
    [Guernsey (7th) Circuit Court,
    November Term, 1906.]
    Cook, Burrows, and Laubie, JJ.
    Nancy J. Miller v. Alexander Miller et al.
    Wipe op Son op Testator Held to Take as Heir under Devise to Son por Life, with Remainder to his Lawful Heirs.
    Where a testator devises a parcel of real estate to bis son for life with remainder to his lawful heirs, and the son marries after the death of the testator: Hela,, that upon the death of the son the wife takes as heir where there is nothing in the will tending to show that the testator used the words “lawful heirs” in a different sense from their strict technical import.
    [For other cases in point, see 3 Cyc. Dig., “Descent and Distribution,” §§ 233-302; 7 Cyc. Dig., §§ 628-636 — Ed.]
    [Syllabus by the court.]
    Error to Guernsey common pleas court.
    J. J. Adams and A. L. Jones, for plaintiff in error:
    1 Widow as heir. Lavery v. Egan, 143 Mass. 389 [9 N. E. Rep. 747]; Page, Wills 600; Rawson v. Rawson, 52 Ill. 62; Weston v. Weston, 38 Ohio St. 473; 2 Jarman, Wills 1; Richards v. Miller, 62 Ill. 417; Story, Conflict of Laws Sec. 479e; Bunnell v. Evans, 26 Ohio St. 409; Mooney v. Purpus, 70 O. S. 57 [70 N. E. Rep. 894] ; Jamieson v. Rnights Templar, 9 Dec. Re. 388 (12 Bull. 272) ; Stewart v. Powers, 6 Circ. Dec. 101 (9 R. 143); Durfee v. Mac Neil, 58 Ohio St. 238 [50 N. E. Rep. 721] ; St. Maries Lodge v. Darrow, 16 Dee. 120; 2 Blackstone’s Commentaries 201, Page, Wills 550, 882; Chamberlain v. Taylor, 105 N. Y. 185 [11 N. E, Rep. 625] ; Proctor v. Clark, 154 Mass. 45 [27 N. E. Rep. 673; 12 L. R. A. 721]; Granger v. Granger, 147 Ind. 95 [44 N. E. Rep. 189; 46 N. E. Rep. 80; 36 L. R. A. 186]; Page, Wills Sec. 512; Cushman v. Horton, 59 N. Y. 149; Barber v. Railway, 166 U. S. 83 [17 Sup. Ct. Rep. 488; 41 L. Ed. 925] ; Forrest v. Porch, 100 Tenn. 391 [45 S. W. Rep. 676] ; Todd v. Todd, 27 O. C. C. 224.
    R. T. Scott and Jo.seph Purjkey, for defendants in error.
   COOK, J.

This was' an action in partition and the controversy arises upon the cross petition of Nancy J. Miller. She claims in her cross petition that she is the widow of Peter Miller, .who was the son of Alexander Miller, and as such widow is the heir at law of Peter Miller and the absolute owner, under the will of Alexander Miller, of a part of the real estate sought to be partitioned.

Alexander Miller disposed of all his property by his will among his children, and the question made is, What is the proper construction of the will-?'

In the second item of his will he devised to his son Howard a certain parcel of land during his life, and at his death *to go to his children.

In the third item he devised to his son Richard for life a certain parcel of land, and at his death to go to his children.

By the fourth and fifth items he devised to his two daughters certain parcels of land absolutely.

By the sixth item he devised to his son Peter a parcel of land during life, and at his death to go to his lawful heirs. The exact language is:

“I give and devise to Peter the parcel of land [naming it] during his life, and when he dies it is to go to his lawful heirs.”

Howard and Richard each were married and had children at the time of the making the will, and at the death of the father; while Peter was a bachelor, but married after the death of his father. Th¿» brothers and sisters of Peter claim that the intention of the father was, that upon the death of Peter the parcel devised to him was to go to his children, or, if he died without issue, that the land af the death of Peter should go to his brothers and sisters.

The words “heirs at law” have a well-defined legal signification. In their strictly technical import it is: “The person or persons appointed by law to succeed to the estate in case of intestacy.” Bouvier’s Law Dictionary, Yol. 1, page 941.

Under this definition there is no question but what plaintiff, Nancy J. Miller, was strictly and technically the heir of her husband, Peter Miller, as under our statute of descent she would inherit from her husband. In Weston v. Weston, 38 Ohio St. 473, it was held:

“A testator, having executed his will giving, in trust for the benefit of his sole and only child, property consisting of nonancestral real estate and personal property, and directing that ‘In ease my said child should die without issue her surviving, then all and singular the property so devised shall pass to and vest in my heirs at law,’ died leaving surviving him his said child, and also his wife, a brother and two sisters who survived the child. Held: That upon, the death of the child without issue, the widow of the testator succeeded to the property, under the will, as heir at law of the testator.”

In the opinion of Judge Mellvaine it is said:

“We readily concur in the proposition laid down in Jones v. Lloyd, supra, that the term “heirs,” when used in a will, is flexible, and should be so construed as to give effect to the manifest intention of the testator as ascertained by a due consideration of all the provisions of the will. But this proposition in no wise conflicts with the well-established rule of construction, that technical words used in a will should have their strict technical meaning, unless it appears that the testator used them in some other and secondary sense.”

In Durfee v. MacNeil, 58 Ohio St. 238, 244 [50 N. E. Rep. 721], in the opinion by Judge Shauck, it is said:

“Under our present statute of descents and distribution the lands of a married woman who dies intestate and leaving no children or their representatives pass to her surviving husband, and he is entitled to her personal estate. He may, therefore, with strict regard to the significance of the term, be designated as her heir. But from the fact that the estates of deceased persons usually descend to their children, the term ‘heirs’ is frequently regarded as synonymous with children. It would be unprofitable -to analyze, or even to cite, the numerous cases in which the term has been held to have been used in its general sense to designate anyone capable of inheriting, or in its limited sense to designate children, as the testator’s intention may appear from the scheme and all the provisions of his will. The flexibility of the term and the duty of the court to ascertain its meaning from a consideration of the entire will are brought into clear view in Jones v. Lloyd, 33 Ohio St. 572, where it was held that the testator’s widow was not entitled to participate in a provision in favor of his heirs, although if he had died intestate she would have been his sole heir.”

The case of Bunnell v. Evans, 26 Ohio St. 409, relied upon by counsel, is, in no sense, contrary to the decisions referred to, as the question made was not passed upon; the only question decided being, that taking the will as a whole it clearly showed the word “heirs” as used by the testator was in the sense of children.

That it is true that the word “heirs” is a very flexible term may be conceded, and that it is frequently used in the sense of children there is no doubt, or even as devisees and legatees. Todd v. Todd, 27 O. C. C. 224. If, however, there is nothing in the will or the surrounding circumstances showing that the testator used the words in a different sense from their striet technical signification, then that signification must be given to them.

What is there in this will that in any manner tends to show they were used by the testator in any sense different from what they usually mean \ ,

Howard and Eichard were married and had children; the devise therefore was to them during life and at their death to their children in fee.

Peter was single. He had no children. The devise was therefore to him and his lawful heirs. Evidently the testator meant that if Peter got married, the remainder was to go to his wife, and if he had children, then to his children, which in either event would be his heirs; and if he did not get married, tjien the fee was to go to his brothers and sisters who in that case would be his heirs. Indeed, the context of the will strengthens the claim of the widow. ' The court of common pleas erred in sustaining a demurrer to the cross petition of plaintiff in error, and the judgment will be reversed and the case remanded with instructions to overrule the demurrer and for further proceeding.

Burrows and Laubie, JJ., concur.  