
    Foster et al. v. Clifford, Executor, et al.
    
      Testator gives wife all property secured to her — By Ohio laws of distribution — Where wives survive intestate husbands — Gives all remaining property to brother — Wife thereby receives only dower interest — And allowance — Under Sections 86oy and 10656, General Code.
    
    A testator gave to his wife all that part and interest in his estate, real, personal and mixed, which is secured to her, as his widow, by the laws of distribution of estates of the state of Ohio, in the cases where wives survive husbands who die intestate, and gave, absolutely, the remainder of his property, real, personal and mixed, to his brother. Held:
    
    That, under this will, the widow took her dower interest in the real estate of the testator, situated in Ohio, one-half of the first four hundred dollars and one-third of the remainder of the personal property subject to distribution, the use of the mansion house, under the provisions of Section 8607, General Code, and the year’s allowance provided for in Section 10656, and that the remainder of the estate, real, personal and mixed, went to the brother.
    (No. 13522
    Decided February 11, 1913.)
    Error to the Circuit Court of Hamilton county.
    This was an action brought in the common pleas court of Hamilton county by the executor of the estate of Thomas Foster, deceased, for a construction of the will of said Thomas Foster, in respect to the proper distribution of his real and personal property.
    The testator left surviving him a widow, Mary Foster, but no child or children — never having had any children. The widow, Mary Foster, and James E. Foster, a brother of the testator, devisees and legatees under the will, were made defendants.
    
      James E. Foster filed an answer to the petition, but, before the trial of' the cause, he died, and the action was revived in the names of his administrator and his children and heirs at law. Subsequently, one of the children of James E. Foster, who had been appointed administrator of the latter, died, and the action was again revived in the names of the administrator de bonis non of said James E. Foster, devisee and legatee named in the will, and, the deceased child’s widow and minor children. These parties are plaintiffs in error in this' court.
    The will, which was executed March 1, 1906, and probated January 19, 1909, is as follows:
    “In the name of the Father of all, amen.
    “I, Thomas Foster, of Cincinnati, Ohio, being of sound mind and memory, and well knowing the uncertainty of all life, do make, publish and declare the following for, and to be, my last will and testament, hereby revoking and cancelling all former wills by me made.
    I.
    “I desire, and direct that all my just debts be first paid out of my estate.
    II.
    “I give and bequeath to my beloved wife, Mary Foster, all that part and interest in my estate, real, personal and mixed, which is secured to her. as my widow, by the laws of distribution of estates, of the State of Ohio, in the cases where wives survive husbands who die intestate.
    
      III.
    “I give, devise and bequeath absolutely, all the remainder of my property, real, personal and mixed, after the dispositions in items one and two herein have been made, and wherever the same may be situated, to my dear brother James E. Foster, now of Chicago, Illinois.
    IV.
    “I hereby nominate and appoint my said brother James E. Foster and George Clifford, of Cincinnati, Ohio, to be the executors of this will, and my faith in each justifies me to request herein, as I do, that they be not required to give bond.
    “In testimony whereof I have hereunto set my hand and seal this 1st day of March, 1906.
    “Thomas Foster. (Seal.)”
    Thomas Foster, a resident of Cincinnati, Ohio, at the time of his decease, December 27, 1908, was possessed of a large amount of personal property and certain parcels of real estate situated in Hamilton county, Ohio, and Campbell com^, Kentucky, all of which real estate, according to averments of the petition and the admissions in the several answers in the case, was acquired by the said Thomas Foster by purchase.
    The widow claimed in her answer that, under the terms of the will, she was the owner of and entitled to the possession of the entire personal estate of her husband, and the owner of and entitled to the possession of the entire real estate in Ohio, of which her husband died possessed, and to her interest, as widow, in and to the real estate located in Kentucky, subject only to the just debts of the testator and the costs of administration. It is conceded, however, that inasmuch as the widow elected to take under the will, she is barred of the interest in the Kentucky property, which otherwise would be secured to her under the laws of that state.
    James E. Foster, in his answer, claimed that as residuary legatee and devisee, and under the terms and provisions of the will, he was the owner of and entitled to a two-thirds part of the entire personal property belonging to said estate, after the payment of debts and expenses of administration, and all of the real estate, subject to the dower interest of Mary Foster therein. This claim was made by the plaintiffs in error herein also, in their answers, filed in the case after the same had been revived in their names.
    Upon the trial of the cause, evidence was offered by plaintiffs in error herein “tending to show the circumstances of the testator, his character, the objects of his bounty and his ties of affection, and instructions to the scrivener who drew the will.”
    This evidence was received subject to the objections of the defendants in error, but after-wards was held by the trial court to be incompetent, irrelevant and immaterial, and, therefore, inadmissible.
    The common pleas court found that the widow, Mary Foster, under the terms and provisions of the will, was the owner of and entitled to the entire personal property belonging to the estate after the payment of all just debts and expenses of administration, and that she was the owner, as devisee in fee simple, also of all the real estate of which Thomas Foster died seized, lying within the state of Ohio, and that James E.. Foster became the owner, under the terms and provisions of the will, in fee simple, of all real estate of which Thomas Foster died seized, lying in Campbell county, Kentucky, which said real estate passed, under the terms and provisions of said will, to said James E. Foster, free from any claim or interest therein of said Mary Foster, and that the several defendants who were made parties in said action, as heirs of James E. Foster, deceased, have succeeded to his interest as such, and the judgment of the common pleas court was that the construction, above found, should be placed on the will, and that the executor of Thomas Foster, after the payment of all just debts and expenses of administration, should distribute the balance of said personal estate to said Mary Foster, as sole distributee.
    This judgment was affirmed by the circuit court on error, and this proceeding is brought to reverse the judgments of the common pleas and circuit courts.
    
      Mr. Herman A. Bayless; Messrs. Kramer & Bettman and Mr. Joseph B. Foraker, for plaintiffs in error.
    It is our contention that the proper construction of the will and the one which dissolves all ambiguities is that construction adopted by the dissenting opinion below (33 C. C., 432; 14 C. C., N. S., 394), which gives to the wife her dower and distributive share, popularly known as the “widow’s thirds,” and gives the remainder of his estate to his “own blood,” his brother, James E. Foster. Weston v. Weston, 38 Ohio St., 473.
    Among the well-settled principles of construction of wills, we cite the following as especially applicable to the will in the case at bar. Mooney v. Purpus, 70 Ohio St., 57; 2 Jarman on Wills (Sweet’s 6 ed.), rule 7, p. 2209, rule 16, p. 2210; Robbins v. Smith, 72 Ohio St., 17; James, Exr., v. Pruden, 14 Ohio St., 251; Starling’s Exr. v. Price, 16 Ohio St., 29; Richey, Exr., v. Johnson, 30 Ohio St., 288.
    As to evidence tending to show the circumstances of the testator, his character, the objects of his bounty, and his ties of affection, and his instructions to the scrivener who drew the will, see Wigram on Wills (2 ed.), 142; 30 Am. & Eng. Ency. Law (2 ed.), 679; 1 Redfield on Wills, *621; James, Exr., v. Pruden, supra; Starling’s Exr. v. Price, supra; Lessee of Worman v. Teagarden, Jr., 2 Ohio St., 382.
    The doubt which arises in the construction of the will is in the nature of what is called in the decisions, a latent ambiguity. Wigram on Wills (2 ed.), rule 7, p. 189; 4 Wigmore on Evidence, Sec. 2472; 1 Jarman on Wills (Sweet’s 6 ed.), 516.
    The ambiguity involved in the will under consideration may belong to the intermediate class, midway between latent and patent ambiguity. Peisch v. Dickson, 1 Mason (U. S.), 10.
    Instances are not wanting in cases of doubt or ambiguity- similar to the case at bar, in which declarations of intention of the testator and instructions to the scrivener have been admitted in evidence. Sharp v. Wightman, 205 Pa. St., 285; Royal v. Smith, 28 Ga., 262; Klock v. Stevens, 45 N. Y. Supp., 603; Schlottman v. Hoffman, 73 Miss., 188.
    
      Mr. Oliver B. Jones; Messrs. Morse & Tuttle and Messrs. Ireton & Schoenle, for defendants in error.
    The law of Ohio as to the construction of wills, has been so clearly laid down in numerous cases in our supreme court, following the general law as laid down by the text-books and authorities, that it is not necessary to go outside of Ohio cases. Lessee of Worman v. Teagarden, Jr., 2 Ohio St., 382; Townsend's Exrs. v. Townsend, 25 Ohio St., 477.
    Instead of stating specifically what part of his property testator desired to go to his “beloved wife,” he makes use of “the laws of distribution of estates of the state of Ohio,” to facilitate testamentary language, as was said by the court in Huber v. Carew, 7 C. C., N. S., 611, 26 C. C., 389, 74 Ohio St., 469.
    The ordinary dictionary definition of the word “secure,” is given by the Century, Standard and Webster’s dictionaries.
    
      The argument made by our opponents on the words “as my widow” is evidently based upon the language of Judge Jones in his dissenting opinion in this case. 14 C. C., N. S., 394.
    This is clearly wrong, as she would take under Section 8592, General Code.
    So, as widow, she would clearly take all of the personal property, even under the most narrow and technical meaning of the words.
    In Parker v. Parker, 13 Ohio St., 110, the rule in Ohio is stated: “When an interest is given or an estate conveyed in one clause of the instrument, in clear and decisive terms, such interest or estate cannot be taken away or cut down by raising a doubt, upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving that interest or estate.” Thornhill et al. v. Hull, 2 Cl. & F. (H. L. Cas.), 22.
    This doctrine was affirmed and reiterated in Collins v. Collins, 40 Ohio St., 353. And it is well expressed in the opinion of the court in Luce v. Dunham, 69 N. Y., 36.
    Evidence was offered for the purpose of showing the good-will existing between the testator and his brother, and what they claimed was the coldness between testator and his wife. This latter testimony could not in any way explain their so-called ambiguity, and was clearly inadmissible. Mackie et al. v. Story, 93 U. S., 589; 30 Am. & Eng. Ency. Law (2 ed.), 673; 1 Greenleaf on Evidence (16 ed.), Secs. 289, 290; Schouler on Wills (3 ed.), Sec. 569; 2 Jarman on Wills (Sweet’s 6 ed.), rule 8, p. 2209; 1 Redfield on Wills, *425, n., *604, n. 12; King v. Ackerman, 67 U. S. (2 Black), 408; Collins v. Hope, 20 Ohio, 492; Charch v. Charch et al., 57 Ohio St., 561; 40 Cyc., 1436; Lincoln v. Perry, 149 Mass., 368; Griscom v. Evens, 40 N. J. L., 402; Zabriskie v. Huyler, 62 N. J. Eq., 697, 64 N. J. Eq., 794; Hollenbeck v. Smith, 231 Ill., 484; Clark, Exrx., v. Trustees of Hardwick Sem., 3 C. C., 152.
    Evidence to prove different intention from that appearing on the face of the will is incompetent. McNeal v. Pierce, 73 Ohio St., 16; Boston Safe-Deposit & Trust Co. v. Coffin, 152 Mass., 95, 8 L. R. A., 740; Allen’s Exrs. v. Allen, 18 How., 393; Painter v. Painter, 18 Ohio, 247; McKelvey v. McKelvey, 43 Ohio St., 213; Mann v. Exr. of Mann, 1 Johns. Ch., 231, 14 Johns., 9; Schouler on Wills (3 ed.), Secs. 568, 569.
    While the purpose of making a will is to express the intention of the testator and the object of construing it is to ascertain that intent, yet this must be gathered from the words he has used. The inquiry is, not what thought did testator wish to express, but what thought has he here expressed? 1 Redfield on Wills, *433; Burke v. Lea, 76 Va., 386; Pack v. Shanklin, 43 W. Va., 304; Hancock’s Appeal, 112 Pa. St., 532; Sturgis v. Work, 122 Ind., 134; Robbins v. Smith, 5 C. C., N. S., 545, 27 C. C., 91, 72 Ohio St., 1; Thayer on Common Law Evidence, 584; Page on Wills, 538.
    
      The construction which we urge in this case is the one which would give to the wife the same property which she would have taken if there had been no will, under the appropriate statutes of descent and distribution. 2 Jarman on Wills (Sweet’s 6 ed.), 2208; Hieatt v. Simpson, 4 O. L. R., 136, 77 Ohio St., 597, 78 Ohio St., 446; Bane v. Wick, 19 Ohio, 328; Crane v. Doty’s Exrs., 1 Ohio St., 282; Schouler on Wills (3 ed.), Sec. 479; Park’s Estate, 4 Pa. Co. Ct. Rep., 560; Wright v. Hicks, 12 Ga., 155, 56 Am. Dec., 451.
   Newman, J.

We must presume that the will in question was drawn with knowledge, on the part of the testator, of the laws of distribution of the state of Ohio. The word “distribution” applies' particularly to personal property, but the use of the word by the testator in this case should not be taken in its technical sense, but should be extended so as to apply to all the estate, real, personal and mixed.

It is urged by counsel for the widow that the testator had in mind Section 8574, General Code, applicable to non-ancestral real estate, and Section 8592, pertaining to personal property, and that these sections, together with Sections 8573, 8578 and 8606, should be read into the will; that, reading these sections into the will, the testator, in the us'e of the words “my widow” and “in the cases where wives survive husbands' who die intestate,” intended to give to his widow all that she would have .taken had no will been written. There are two sections of the Code, relating to the case of a wife surviving her husband who dies intestate — one where there are children, and one where there are not. It is claimed by counsel that, while the testator does not, in words, say that he had reference to cases where husbands die intestate without children, yet the language actually used must be taken in connection with the words, “my widow,” and that he had in mind his own case where there were no children, and, therefore, the widow took all the Ohio real estate, under Section 8574, and all the personal property, under Section 8592.

But, in construing this will, we must not depart from the well established rules of construction. The rule approved by this court in Robbins v. Smith, 72 Ohio St., 17, should be recognized, and the “conflicting provisions of a will should be reconciled so as to conform to the manifest general intent.” It was evidently the intention of the testator, in the case at bar, and clearly so we think, that the widow was to have but a part, or interest, in the estate, real and personal. This is evidenced by the use of these words in Item two, and the bequest and devise to James E. Foster of the remainder of the property, real and personal, in Item three, gives additional force to this position. The brother is to receive a portion of the personal property, and, if the construction claimed by the widow is tenable, Item three of the will, as to personal property, would be wholly ineffective.

The part the widow was to receive is the part secured to her by the laws of distribution of the state of Ohio. Can it be urged, with any force, that the whole estate of a husband is secured to his widow by the laws of the state, even if there are no children, in the sense that the word is ordinarily and generally used? We cannot subscribe to the meaning given the word “secured” by the circuit court, when it held that the testator meant that the widow was devised and bequeathed that which she would “obtain” or “have” as his widow. The laws of this state will protect a widow to the extent of her dower interest in the realty and to a one-third (approximately) interest in the personal estate, in the occupancy of the mansion house, under Section 8607 of the Code, and her year’s allowance, under Section 10656. The husband is free to dispose of the remainder as he sees fit, and the protection afforded her by the law cannot affect such a disposition made by the husband. As has been said in this case, the widow is the prospective heir at law of all the estate in the event there are no children, but it cannot be said that she is secured - in this, for the reason that two-thirds (approximately) of the estate can be taken from her, by the husband, by will.

Had the testator intended that James E. Foster should have the Kentucky real estate only, this could have been provided for by a devise to him of that property, and the residue of the estate to the widow. This certainly would have been the ordinary and customary method, but clearly the intention of the testator was different, for he provides that the widow is to have a part of the real and personal property, and the brother the remainder.

Evidence was offered by counsel for plaintiffs in error tending to show the circumstances of the testator, his character, the objects of his bounty and his ties of affection and the instructions to the scrivener who drew the will. This evidence was rightly rejected by the trial court, in accordance with the well settled rules as to the competency of extrinsic evidence in the construction of a will, as laid down by this court in Lessee of Worman v. Teagarden, 2 Ohio St., 380, and Townsend's Exrs. v. Townsend, 25 Ohio St., 477. It appears, from the record, that the fact that the testator had no children, and the further fact that the property was acquired by purchase, were admitted, and no objection made to the use of these facts in aiding in the construction of the will. We might say that, in our view of the matter, these facts are wholly immaterial — the part of a husband’s estate secured to his wife being the same whether there are children or not, or whether the property is ancestral or nori-ancestral.

Our attention has been called to the case of Smith v. Hunter, Trustee, 86 Ohio St., 106. This case, in our opinion, is not in point, and is not applicable to the case at bar.

We conclude, therefore, that, under the terms of this will, the widow is entitled to her dower interest in the Ohio real estate and to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution. In addition thereto, she would be entitled to the use of the mansion house for a year, under the provisions of Section 8607, and the year’s allowance provided for in Section 10656. The remainder of the estate, real, personal and mixed, upon the death of the testator, went to the brother, James E. Foster, and the several plaintiffs in error, heirs and personal representatives of said James E. Foster, deceased, have succeeded to his interest as such, and judgment is rendered accordingly.

Judgments of the circuit and common pleas courts reversed, and judgment for plaintiffs in error.

Judgments reversed.

Shauck, C. J., Johnson, Donahue, Wanamakee and Wilkin, JJ., concur.  