
    No. 255
    GRAHAM et v. McQUISTON, Exc.
    No. 20197.
    Supreme Court
    On motino to Certify.
    Dock. Nov. 29, 1926,
    4 Abs. 805.
    1271. WILLS — Where a codicil is indefinite and uncertain so that the intentions of the testator is not clear, does the codicil fall and the will control?
    Attorneys — D. F. Kennedy for Graham; J. P. Wilson for the executor; both of Youngstown.
   This cause came on to1 be tried upon appeal from the judgment, order and decree of the Mahoning Common Pleas construing the meaning and effect of the will and codicil of William E. Morrison, deceased, and was tried to the court upon the will and codicil and submitted upon argument and brief of counsel. William E. Morrison, the testator, died in the year 1925, leaving a will and codicil intended to dispose of all of his property. The will was executed in the 4th day of August, 1920, and the codicil was dated the 4th day of September, 1924. The will and codicil were duly probated and no question is raised as to the authenticity or the meaning or construction of the codicil itself and its effect upon the will.

It appears that the chief beneficiary under the will preceded the testator in death, and thereafter, due to this fact, the testator endeavored to make some changes in his will by the codicil The Court of Appeals in substance found that the language- of the codicil was so indefinite and uncertain that it was not susceptible of any satisfactory construction and that the effect of said codicil was to leave the residuary estate mentioned in Clause Ten of the will undisposed of, and that therefore as to the devise of the personal property mentioned in residuary Clause Ten the testator died intestate.

Graham contends in the Supreme Court:—

1. That the judgment of the Court of Appeals is inconsistent in that it holds that the codicil on account of its ambiguity renders both the will and the codicil ineffective to pass the personal property, yet holds that the will controls in passing the real estate. No reason is seen for this distinction.

2. That where a codicil is so indefinite and uncertain that a satisfactory interpretation can not be arrived at and the intention of the testator is not clear, then the codicil must fall and the will control as if no codicil had ever been written.  