
    David Sinton v. Kate J. Boyd.
    1. In the construction of wills, words of survivorship should be referred to the period appointed by the will for the payment or distribution of the subject-matter of the gift, unless a contrary intention is evinced by the language of the will.
    2. Where a testator gave all his estate to his wife for life, and directed that all remaining after her death should be divided, by his executors, equally amongst his children, or the survivors of them, and, after his decease, one of the children died, before the death of the testator’s widow, leaving a child: Held, That no interest vested in the deceased child under the will, and that the grandchild of the testator was not entitled to share in the estate, as one of the “ children” or “survivors,” to whom it was to be distributed.
    Error to the superior court of Cincinnati.
    The original action was brought in 1857, by Kate «J. Boyd against David Sinton, in the superior court of Cincinnati, to recover an undivided seventh of a leasehold of certain houses and lots in Cincinnati.
    She claimed title from her grandfather, John Boyd, who held the premises under a lease for ninety-nine years, renewable forever.
    In July, 1832, John Boyd made his will, and died October 23, 1832. After directing that his debts shordd be paid, he bequeathed his library to his sons, or the survivors of them, to be equally divided between them when they respectively become of age ; and his household goods he bequeathed to his wife, Mary Boyd, to be by her kept, used, and employed during her life, and what may be remaining at her death’ he directs to be divided amongst Ms daughters, or the survivors of them, or that his wife may, during her life, make such distribution thereof to Ms daughters, as she may deem advisable. He disposes of the remainder of his property as follows:
    
      “ I also give and bequeath unto my wife my estate, real, leasehold, and personal; and all moneys and proceeds that may arise from the same, or that shall be remaining in the hands of my executors after the payment of my just debts and funeral and administration expenses, to be used, employed, and kept by her during her natural life for the support of herself, and the support and education of my minor children. I also allow and direct that my wife shall, if she deems it proper, advance my sons, or any one of them, as they severally arrive at the age of twenty-one years, such sum of money as she may deem advisable, out of any surplus funds remaining in her hands not required for the-support of herself and the support and education of my said minor children, she taking from them, respectively, for such advances, sufficient security for its repayment without interest. I also order and direct that my said wife shall draw from my said executors, on her own order, all such sum or sums of money as shall be in their hands, at any time, over the amount sufficient for the payment of my debts and the expenses aforesaid.
    “ I also order and direct that, after the death of my wife, all the estate and property, real, leasehold, and personal, remaining (except as aforesaid), shall be by my executors, a majority or the survivors of them, divided equally amongst all my children, male and female, or the survivors of them; but in case the same, or any part of the same, in the opinion of my executors, cannot be fairly divided without injury thereto, then such part shall be by them sold and conveyed for the best price that can be had, and the proceeds divided as aforesaid: provided, that any advances made by my wife to my sons under the provision for that purpose, shall first be deducted out of -their respective portions; and if any shall have overdrawn his equal proportion by way of advance, the surplus shall be refunded, so as to make the portions to each equal.”
    After adding certain directions as to the management of other houses and lots, he proceeds to direct as to the property in controversy as follows:
    
      “ I also direct that my said executors, a majority or the survivors of them, shall lease, rent, on the best terms that can be had for the same, my houses and lots on the north side of Eifth street, between Yine and Race streets, which were leased to me by Samuel Talbert and brother, the proceeds of which, after paying ground-rents and taxes, to be paid to and received by my wife for the purposes aforesaid.”
    The testator died, leaving Mary Boyd, his widow, and eight children. One of these children, James S. Boyd, died in 1836, leaving a widow and Kate J. Boyd, his only child, who was born in 1833.
    The estate of John Boyd was largely insolvent. About the time of the testator’s death, a quarter’s rent of the leasehold having fallen due, the lessor demanded rent, claimed a forfeiture for non-payment, and the tenant attorned. An unsuccessful suit in chancery was brought to set aside the forfeiture. Afterward, a suit in ejectment was brought, which, after a protracted litigation, was decided in favor of the executors.
    The leasehold was sold to the widow of the testator with the consent of all the heirs, except Kate J. Boyd, the grandchild, who was then a minor. The property was exchanged by the widow for another house and lot, which, after .her death, descended to her heirs. Her grantee sold the leasehold to David Sinton, the defendant in the court below.
    Nothing was realized to the estate from the property, and it seems to have been mostly exhausted in various ways in connection with the litigation for its recovery from the for • feiture claimed.
    Many matters in connection with the management and disposition of the property are set forth in the record, that upon the view taken of the case by the court, need not be further stated.
    It was claimed, on the part of the plaintiff below, that the disposition of the property, after its recovery, and all the transactions in relation thereto, were void as to her. She recovered a judgment; and a motion for a new trial, on the ground that the judgment was against the law and evidence, was overruled in the general term. A bill of exceptions was taken, embodying all the evidence. To reverse this judgment, this petition in error is prosecuted in this court.
    
      Aaron F. Perry, for plaintiff in error,
    among other points argued the following:
    Under John Boyd’s will, nothing could vest in his children until the death of his wife; and then only in the “survivors of them.” A child dying before the death of the wife was not a “survivor,” and the child of such child) though surviving, was not one of the surviving “ children ” of John Boyd; consequently, such grandchild could have taken nothing under the will. Radcliffe v. Buckley, 10 Ves. 195; Lord Oxford v. Churchill, 3 Ves. & Bea. 59; Crooke v. Brookeing, 2 Vern. 107; Reeves v. Brymer, 4 Ves. 692; Izord v. Izord, 2 Des. R. 308; Redf. on Wills, 491 (citing in note Osgood v. Lovering, 33 Maine, 464), 492; Hawkins on Constr. of Wills, 85, 261, 263; Buckle v. Fawcett, 4 Hare, 536; Powell on Devises, 286; 2 Williams on Executors, 887; Smith v. Smith, 2 Vern. 92.
    It is respectfully submitted, that as the father of Kate died before the widow, he took nothing by the will; and consequently that Kate inherits nothing from him. In the language of Lord Westbury — (Martin v. Colgate, 1 Eng. & Irish App. Br. L. R. Appellate, 175: decided in 1866) — “ Substitution really is where the parent tahes something : here he was dead before the tenant for life, and so he tooJc nothing at allL
    
    
      Lewis' E. Mills
    
    argued the case for defendant in error but not upon the distinct point upon which it is decided.
   Day, J.

Numerous perplexing questions have been presented in this case, but they are all founded on the assumption that Kate J. Boyd derives title under the will of her grandfather1, John Boyd. If this assumption be not well founded, there is an end of the case. This, then, is the prime question to be considered.

There is no express devise to grandchildren; nor is there anything in the will that will admit of that construction. The devise is to children; ” if, therefore, she has any interest in the estate in controversy, she derives it by descent ■from her father, James S. Boyd, who was the child of the testator. If nothing was vested in him at the time of his ¡death, she can inherit nothing from him.

The question, then, is, whether an interest under the will •vested in James S. Boyd. He survived the testator, but died ’before the widow, after ” whose death the property was to •-be divided. The property was to be divided equally .amongst the testator’s children, or the survivors of them.” It is necessary, therefore, to ascertain what was the point of time at which the survivorship was to be determined. Was •it at the decease of the testator, or of his widow, who had a .life interest in the property? This depends entirely upon the intention of the testator. In seeking that, we arrive at the same result, whether we apply the settled rules of the '•law, or are guided only by a study of the will itself.

The ancient holdings on this subject have been much ¡modified by more recent decisions. Also the soundness of the distinction, taken between real and personal estate, has been questioned, until it has nearly or quite faded away. 2 Jar. on Wills [650] ; Hawkins’ Treat. 262.

The case of Young v. Robertson (8 Jurist, N. S., 825), decided in the House of Lords in 1862, is directly in point. It was a will of real and personal estate to trustees, to account to the widow during her life, and, after her death, to certain grand nephews and nieces, or their survivors.

In that case it was held, “ upon the authorities, as well as upon principle,” to be the rule, “ that where there is a clause of survivorship, prvma-faoie survivorship means the time at which the property to be divided comes into enjoyment— that is to say, if there be no previous life estate, at the death of the testator; if there be a previous life estate, then at the termination of that life estate:” or (as the rule is more briefly stated by the Lord Chancellor), that words of survivorship should be referred to the period “ for the payment or distribution of the subject-matter of the gift.” This is declared by him to be “the rule that is now finally established ” in England.

This undoubtedly is the general rule recognized in this country, subject, of course, to such modifications as the paramount rule, giving effect to the intention of the testator, may require.

We think the general rule is the law applicable to this case, and that it is in harmony with the obvious purpose and intent of the testator, as gathered from the will.

Nor are we embarrassed by any question as to the state of the legal title to the leasehold in controversy, during the lifetime of the widow, for this court, in the case of Boyd v. Talbert (12 Ohio, 212), held, that it • was vested in the executors. The legal estate, then, was not vested in the father of Kate J. Boyd during his life.

Nothing is given directly by the will to the children, except the library to the sons, and the household furniture contingently to the daughters. Everything else is given to the wife, “ to be used, employed, and kept by her during her natural life, for the support of herself, and the support and education of the minor children.” It is only that which, may he “ remaining ” after her death, that he directs to be di vided amongst the children. Their interest, then, attaches at her death, and to that only which may bo then remwming.

This view is strengthened by the provision in the will for the repayment of any advances the widow might make to the sons; nor does this provision conflict with that requiring the division to be made only among his children who might be alive at the period fixed for the distribution.

It is clear, then, that, during the life of the widow, no interest in this leasehold vested in the father of Kate J. Boyd. He died before the time for the distribution of the estate arrived; therefore, nothing vested in him or his heir, for the distribution was to be made only amongst the children ” of the testator that might be surviving at the time mentioned in the will for the distribution.

The testator, it would seem from the record, was an educated man, and' from the manner in which he has frequently used the words, “survivors of them” in his will, we cannot but think that he fully understood their meaning, and that he intended to use them in their ordinary sense, when applied to his children, as he clearly does, in the same sentence, when applied to his executors.

■ He directs his executors, a majority or the survivors of them,” to make the division “ equally amongst all my children, male and female, or the survivors of them.” The distribution is to be made by the executors to the children, if all of each class are alive when the period for the division arrives; if not, then it is to be made by one class of survivors to the other class of survivors, — that is, by those of one class then living to those of the other class then alive.

The testator has used apt words to confine the distribution of his property to his own children; and, in the absence of anything indicating a contrary intention, it is but reasonable to presume that he intended what is imported by their ordinary sense.

We are, therefore, constrained to hold, that the plaintiff, in the court below, had no interest in the leasehold for which she brought suit. It follows that it is unnecessary to consider the other questions made in the case, and that the judgment of the court below must be reversed.

Brinkerhoff, O.J., and Scott, Welch, and White, JJ., concurred.  