
    Sommers v. Doersam et al.
    
    
      Wills — Construction—Intention of testator determined, how— Generally accepted meaning of words and technical terms adopted — Such meaning not departed from, to effectuate supposed intention — Devise dependent upon adoption of child or children.
    In the construction of a will where the words, when given their natural, ordinary and generally accepted meaning, are plain and unambiguous and when technical terms used in the will have an equally plain and well-known meaning and show a clear intention on the part of the testator, then such meaning cannot be departed from for the purpose of giving effect to what may be supposed was the intention of the testator. Such intention must be found in the words actually used in the will, construed in the light of the established rules of interpretation and such evidence of extrinsic facts and circumstances as are properly admissible in a suit for construction of a will.
    (No. 19494
    Decided June 1, 1926.)
    Error to the Court of Appeals of Franklin county.
    This case originated in the court of common pleas of Franklin county and was an action for the construction of the will of Philip Knell, deceased, especially the second item thereof. Said will in its entirety is as follows:
    “I, Philip Knell, of the city of Columbus, county of Franklin, and state of Ohio, being in good bodily health and of sound and disposing mind and memory, but considering the certainty of death and the uncertainty of the time thereof, do make and declare this my last will and testament, as to all such worldly estate as it has pleased God to intrust me with. I dispose of the same in the manner following, that is to say:
    “First, I desire that all of my just debts and the charges of my funeral to be paid out of my estate as soon as it may be convenient after my decease.
    “Second. I give, devise and bequeath all of my property, real, personal and mixed, to my beloved wife, Maggie Knell, so long as she remains unmarried and if she has remained unmarried until her death and has legally adopted a child or children of her own blood relation or of the blood relation of myself, then upon her death or remarriage to such child or children in fee simple, but if she remarries or dies unmarried without having adopted a child or children, said property shall go to my next of kin then living per stirpes and not per capta [capita] in fee simple.
    “If my said wife shall decline to accept the provisions of this my last will and testament in lieu of dower then she is to have only the dower estate given by law and my estate shall pass, subject to her dower by law, to any child or children that I may legally have adopted prior to my decease, but in the event that I shall have failed to adopt a child or children previous to my decease, the estate shall go to my next of kin then living per stirpes and not per capta in fee simple.
    “If the death of my wife preceeds my death then my said property shall pass to any child or children that I may have legally adopted, but if I shall have failed to adopt a child or children previous to my decease, then my estate shall pass to my next of kin then living per stirpes and not per capta in fee simple.
    “I hereby constitute and appoint my said wife sole executrix of this my last will and testament and request that she be not required to give bond.
    “In testimony whereof, I have hereunto set my hand this eleventh day of May, 1907.
    “Philip Knell.
    “Signed, published and declared by the above Philip Knell as and for his last will and testament in presence of us, who in his presence and the presence of each other, and at his request have hereunto subscribed our names as witnesses.
    “Theodore Weyant, residence 1113 East Broad Street.
    “Fred Koenig, residence 350 So. 4th Street.
    “Will Kaiser, residence 350 So. 4th Street.”
    So much of the facts incident to this controversy as it is necessary to state to disclose the law question may be taken from the brief of the plaintiff in error, which is a fair statement, as disclosed by the record:
    Margaret Ingold, who lived at Chillicothe, gave birth to a son born out of wedlock at the home of her half-sister, Mrs. Sommers, on November 10,. 1882. At this time Margaret was 18 years of age. While an infant, only a few weeks old, Charles Sommers was baptized. The record of this baptism was kept by the church, and was offered in evidence by the present pastor, Kev. Mr. Weber. The translation of the record was admitted as evidence, marked “Exhibit 2.” It shows that Charles’ uncle Ferdinand Sommers was named as the “adoptive father;” that Charles was the son of Margaret Ingold, “born out of wedlock.” Later, the Sommers family and Margaret and Charles moved to Columbus. Margaret made her headquarters at the Sommers home.
    .When Charles was 10 years old, Margaret In-gold was married to Philip Knell, on December 15, 1892. They went to housekeeping in a single room. As a small boy, Charles was frequently at his mother’s house. She continued to provide him with clothes, many of which she made herself, working in Philip’s presence. Charles helped his mother with the work, and ran errands for his parents. He played about their house with his friends. He ate at their table. He stayed at their house overnight. He still made his home with the Sommers, but he always knew that Margaret was his mother. When she and her husband, Philip, and Charles were alone he called her “Mother.” When others were present, he called her “Aunt Maggie.” Mrs. Knell introduced him as her nephew, but in their own family all knew that he was her son. A few other persons also knew that Charles was Margaret’s son. .
    At 13 years of age, Charles went to work in a shoe factory. He stayed there for some time, then took a second job, and then secured a place in the postal service, where he is still employed. He saved his money, built his own home from his earnings, about the time of his marriage. Philip Knell looked after Charles, advised him about his work, and helped him build his house. Philip and Margaret always lived together happily. Charles always gave his mother and stepfather all the love and affection of a son. Margaret showed him such love that strangers noticed it; even her little niece noticed it. Philip was always kind and friendly toward him.
    When Charles married, in November, 1906, Philip and Margaret attended his wedding, made him presents, which Philip paid for, and attended his wedding reception.
    Then, a few months later, on May 11, 1907, the will in controversy here was executed.
    ■ Charles told his wife that he was the son of Margaret Knell, before he became engaged to her, but it made no difference to her. In fact, she had all the facts of his life from her mother, who had the gossip from some busybody.
    Later, three children were born to Charles and his wife, two before the death of Philip Knell. Philip and Margaret took all the interest of grandparents in these children. Philip always made a fuss over them, whenever he visited Charles. He made himself thoroughly at home at Charles’ house, wandering over the house, happy and contented. Before Philip’s death, he told his niece that his will was on file at the courthouse, and that he wished she would see that it was read. After his death, this niece, Jessie Doersam, told Margaret Knell where the will could be found, and she says that at that time Mrs. Knell “did not have very much education and did not know what to do. * * * She was almost at a loss to know what to do and how to get money and that kind of thing.”
    When Philip Knell died, Charles Sommers took care of his mother, moving first into her house, and later taking her to his own home. He did his part as a loving son. He looked after her business, repaired her houses, collected her rents. She died at his home. Margaret and Charles had talked over the terms of this will. She had thought at one time of adopting one of his children, but no lawyer was consulted, and nothing was done about the matter until after her death. No children were born of the marriage of Margaret and Philip Knell. Neither of them ever adopted a child.
    The following appears of record as a part of a conversation between Charles E. Sommers and his mother, Margaret Knell, after the death of the testator, and shows the knowledge of Margaret Knell of the contents of the will:
    “Q. Margaret Knell explained to you that unless she had adopted a relative the estate would go back' to Mr. Knell’s side of the family? A. She did not.
    “Q. You never discussed that? A. She did not say it would go back to the Knells because she did not have a true conception of the will, I don’t think. The way she talked about it, I do not think she knew what her rights were under the will.
    “Q. You discussed the will with her? A. Yes.
    “Q. And you advised her as to her rights under the will? A. I did not advise her as to anything.
    “Q. You discussed that with her, anyway? A. I did.
    “Q. It was not until some time after her death that you considered that you had any rights under the will? A. That is true.”
    Also, the following conversation between the testator and his niece, Jessie B. Doersam, is disclosed by the record:
    “Q. Will you tell us about the occasion of one call there? A. Well, now, as well as I remember I was not so old then as I am now. Some time before my uncle died, of course I can’t say just how long it was, nine months before he died, he called me on the phone and asked me to come over to the house that evening, and I went over. We talked as usual about his condition. It was just a short time after he had had an attack of heart failure, and had been stricken on the street and had been taken home. That was winter, as well as I can remember. I can’t tell you what month. After he had recovered sufficiently, he called me up and asked if I would come down. I went down, and talked as usual, until it got seemingly a little cold in the house, and he asked my aunt if she would fix the furnace.
    “Q. Who is your aunt? A. Mrs. Maggie Knell. He asked her if she would look at the furnace. It was getting a little cold. While she was fixing the furnace, he said to me, as well as I can remember, in substance he said this: ‘Jessie, I have been quite ill, and I can’t tell just what is going to happen to me. I might soon be gone.’ He says: ‘There is one thing I would like for you to do for me to see that my will is read. I have made a will. It is kept in the courthouse. That will include you and your people, and I wish that you would see that that will is read.’ And I promised him that I would.
    “Q. He said the will was at the courthouse? A. Yes.
    
      “Q. Was there anything further said regarding the will at that time? A. Not that I can remember. Yes, that is all that I can remember at the time.”
    In the court of common pleas a construction of the will was given favorable to the contention of Charles E. Sommers, plaintiff in error. Upon an appeal to the Court of Appeals, a different conclusion was reached; the construction in that court being favorable to the next of kin of Philip Knell, deceased. To reverse this decree, error is prosecuted to this court.
    
      Mr. Frank M. Baymund and Mr. John F. Car-lisle-, for plaintiff in error.
    
      Mr. Donald J. Hoskins, Mr. Harley E. Peters, Mr. John E. Sater, and Messrs. Vorys, Eater, Seymour é Pease, for defendants in error.
   Day, J.

Is there a latent ambiguity in the will of Philip Knell, deceased, disclosed by the extrinsic evidence in this record, which shows that the testator’s intent was to make the plaintiff in error his residuary beneficiary?

The second item of the will, in which it is claimed the latent ambiguity exists, is as follows:

“I give, devise and bequeath all of my property, real, personal and mixed, to my beloved wife, Maggie Knell, so long as she remains unmarried and if she has remained unmarried until her death and has legally adopted a child or children of her own blood relation or of the blood relation of myself, then upon her death or remarriage to such child or children in fee simple, but if she remarries or dies unmarried without having adopted a child or children, said property shall go to my next of kin then living per stirpes and not per capta in fee simple.”

The rules with reference to the construction of language of wills have been so many times stated that it seems unnecessary to reiterate them, but at the expense of repetition the following general and accepted doctrine may be stated:

“A testator is presumed to use the words in which he expresses himself in his will in their primary or ordinary sense, and in construing the will the words employed are to be taken in that sense, unless it is manifest from the context of the whole will, or from the subject-matter, that the testator intended to use them in a different sense, or unless a reading of the words in their primary or ordinary sense will lead to some absurdity, repugnancy, or inconsistency with the declared intention of the testator as ascertained from the whole will, in which case the natural and ordinary meaning of the words may be modified, extended, or abridged. Where the words when given their natural, ordinary, or popular meaning are plain and unambiguous, and show a clear intention on the part of the testator, they must be given that meaning notwithstanding their effect, and such meaning cannot be departed from for the purpose of giving effect to what it may be supposed was the intention of the testator, or merely because they lead to consequences which are capricious or even harsh or unreasonable.” 40 Cyc., 1396.

These principles are amply sustained by the text-book writers and the adjudicated cases, and applying them to the ease at bar we find nothing in the will bnt that which is plain, direct, and simple language, and a court is bound to give such words their ordinary and accepted significance. Such technical words as are used therein are used correctly and in a plain and easily understood meaning in the law. The expression “legally adopted” means in accordance with the laws of the state in force and effect at the time of the execution of the will. These matters are, of course, statutory, as adoption was unknown to the common law of England; and in states whose jurisprudence is based on that system, the right exists by virtue of the statutes. In this state the so-called designated heir statute, Section 8598, General Code (52 Ohio Laws, p. 78), was enacted shortly prior to our general adoption statutes, Section 8024 et seq., General Code (67 Ohio Laws, 14), but all were in full force and effect at the date of the execution of the will, and the testator is, of course, presumed to have had knowledge of their existence. His use of the words “legally adopted” indicates his desire that any adoption made by his widow should be in accordance with the law of the land. The record discloses that after the death of the testator his widow, Maggie Knell, never remarried; that she knew of the terms of the will, for after the death of the testator, she discussed the same with her son Charles Sommers, and for some reason, best known to herself, failed to comply with its plain and simple terms, to wit, that in the event that she had not remarried and desired to pass the estate, after her death, to others than the next of kin of the testator, it was necessary for her to legally adopt a child or children of her own blood relation or of tbe blood relation of the testator. On the other hand, she complied literally with the terms of the will providing that if she “dies unmarried without having adopted a child or children, said property shall go to my next of kin then living per stirpes and not per capta in fee simple. ’ ’

We think this language so plain, simple, and direct that, under the facts disclosed by this record, it brings us to but one conclusion, that is, that upon the death of Maggie Knell, widow of the testator, not having remarried, nor legally adopted a child or children, and the testator having failed to adopt a child or children, as designated in the will, the estate passed to the next of kin of the testator, as in said will directed.

While Maggie Knell could not legally adopt her own son, she had opportunity to legally adopt a child or children of her son, who would be her “own blood relation,” if she saw fit so to do; and, while this was apparently discussed, it was never carried out. Or again, she might have adopted some of the blood relations of the testator. However, with knowledge of the terms of the will, which she discussed with the plaintiff in error, she saw fit to refrain from complying with this plain and unambiguous language in the will. Such being the fact, the result must be adverse to the claims of the plaintiff in error, and the estate must pass to the next of kin of the testator. In the language of Shauck, J., in Smith v. Hunter, Trustee, 86 Ohio St., 106, 115:

“If the court should supply them [words limiting succession to the daughter’s heirs at law, who should be of her blood], it would be amending his will rather than construing it. However confidently we might follow counsel in the conjecture that the testator would have used such terms if he had foreseen all that has now occurred, we should still be admonished that in ascertaining the meaning of the testator it is of first importance to assume that he meant what he said.”

Courts cannot “devise a new scheme for the purpose of spelling out a new theory by which it can be said that the testator intended something which his language shows that he did not intend,” Wright v. Wright, 118 N. Y. S., 994, affirmed 140 App. Div., 634, 125 N. Y. S., 875.

Adams, Adm’r., v. Jones, 176 Mass., 185, 57 N. E., 362: “When words have an ascertained meaning, and admit of a rational interpretation, and there is nothing in other portions of the will indicating that they were not used in their ordinary sense, a court cannot depart from that ordinary sense for the purpose of giving effect to what it may be guessed was the intention of the testator, because it would result in a fair distribution of the estate. If, in such a case, the testator did in fact intend to make an equal distribution, he has failed to express that intention in using the words he did use, and the power of the court goes no further than to ascertain the true meaning of the words used by him as he used them.”

“Whatever method may be resorted to for the interpretation of a will, it must be applied solely with a view to arrive at the intention of the testator, as his intention may be gathered from the language found in the instrument itself. However

clearly an intention not expressed in the will may be proved by extrinsic evidence, the rule of law requiring wills to be in writing stands as an insuperable barrier against carrying the intention thus proved into execution.” Daugherty, Adm’r., v. Rogers, 119 Ind., 254, 20 N. E., 779, 3 L. R. A., 847.

While this will and its history are unusual, we believe that no useful purpose will be served by a detailed discussion of the extrinsic evidence introduced in this case. It is apparent that this testator provided lawful means by which this estate might have passed to a child or children of the blood relation of Maggie Knell, or to such of the blood relations of the testator as she might have legally adopted. Failing so to do, and having died .without remarrying, this estate now goes under the terms of the will to the next of kin of the testator living at the date of the death of said Maggie Knell, to be distributed “per stirpes and not per capta [capita] in fee simple.” Having reached this conclusion, it follows that the judgment of the Court of Appeals must be affirmed.

Judgment affirmed.

Marshall, C. J., Jones, Matthias, Allen, Kinkadb and Robinson, JJ., concur.  