
    DEVISE TO CHILDREN WHERE THERE HAD BEEN TWO MARRIAGES.
    Common Pleas Court of Montgomery County.
    John Lawrence Hinkson v. William Adkins et al.
    Decided, March 10, 1924.
    
      Wills — Construction of Devise to Husband, Wife and Children— Where the Wife had been Twice Married and had Children by Both Husbands.
    
    A devise of property to Mr. and Mrs. Lawrence H. and their children includes children born to Mrs. H. by a former marriage, where the fact that she had been twice married was well known .to the testator who was her half brother; but a child of the second marriage born 'after the death of the testator does not take.
   Sneidker, J.

This cause is before the court for the construction of an item of the will of Jacob Leisz who died in this county, November 15th, 1921, possessed of certain real estate. His will which was admitted to probate is before us, and we find that the item in question reads as follows:

“I give and devise to Mr. and Mrs. Lawrence Hinkson and children, my property located on the corner of Central Avenue and Bridge street in West Carrollton, Ohio, and known as lots No. 11, 12, 13 and 1.4 as shown on the plat of said village of West Carrollton, Ohio.”

The remainder, of this item is not important in this case. Leisz, at the time of his death and for some years before had lived with his half sister, who at the time of making his will was Mrs. Lawrence Hinkson. She had been married before to a man by the namme of Adkins, and by that marriage had four children, all of whom are at this time minors, ranging from 15 to 6 years of age. By her marriage with Hinkson, she has to this day two children — one Zola Hinkson, a little over two years of age, and John Lawrence Hinkson, Jr., who was born October 13th, 1922. At the death of the testator, all of these children save John Lawrence, Jr„ were in being. Jacob Leisz was acquainted with all the facts which we have stated in regard to the Hinksons. There is nothing in this record to show that anything other than good will existed between all of tbe parties. Under these circumstances, how is the devise “to Mr. and Mrs. Lawrence Hinkson and children” to be construed?

The general rule is that:

“In determining the construction of a will, the testator is to be presumed to have used words in their ordinary and primary sense unless from the context it appears he intended to give them some other or secondary meaning.

The word “children” means only immediate, legitimate descendants. It applies to those only who are of the blood of the testator himself, or of the person named in the bequest or devise as the parent. It does not comprehend those who have acquired the name or character of children by marriage. But this rule gives way where there is a clear intention to the contrary; for the intent will govern and contro] the legal operation of words. Edward’s Chancery Reports, Yol 1, page 41.

Here, there are two sets of children. Four are the children of the wife, and two are the children of both the husband and wife. The situation is one for the application of an exception ib the general rule which we have just given, following which general rule and regarding the children of Mrs. Hinkson by her former marriage as stepchildren of her husband, they would be precluded from participation in the devise.

It is stated in the case of Andrews v. Andrews, 15 Law Reporter, I. R., page 199, that:

“It is a settled rule that a gift to the children of A. B., living at my decease” means all the children then living, whether born of one or more marriages', unless a contrary intention very plainly appears.”

In that case there was a bequest of 10.000 pounds railway stock, in trust for the “children” living at testator’s decease, of his deceased niece “Margaret.Kerr.” Some years before the date of the will the niece mentioned had married a second time, under circumstances which very much displeased the testator. There were five children of her first marriage, and one of the second, all of whom survived the testator, He communicated by letter his desires that the children of the second marriage should not participate in the bequest. It was by the court held:

“That the word ‘children’ must bear its prima facie meaning so as to include the children of both marriages.”

In the 9th. Texas Civil Appeals at .page 482, we find the 3rd syllabus to be:

“A testator who had adult children by a former marriage and minor children by a second marriage, devised his property to his second wife in trust for ‘our minor children’ during minority, after which it was to be divided among ‘our children.’ Held, that the children by the first marriage took equally with the others in the division.”

The rule laid down by these authorities together with others which we could quote, is adopted by Underhill in his work on wills at Section 551.

We think that we may say under the peculiar circumstances of this case that the word “children” should be construed to intend and include the children of Mrs. Lawrence Hinkson (Priscilla Louise Hinkson) and the children of both John Lawrence Hinkson and his wife, Priscilla, with this exception that it is a rule of testamentary construction that an immediate devise to children or to a person and his children or his issue, if he has children at the testator’s death, vests in those in esse, to the exclusion of those born afterwards. This rule may be said to be universal, and is supported by numerous decisions of which we quote 'a few.

In the case of Smith v. Ashurst and wife, in 34 Ala., page 208, the court decide that under a bequest to the “children of my brother Richard,” children born after the testator’s death take nothing.

In the case of Wood et al, v. McGuire et al, 15 Ga., page 203-3, it was held that a devise to ”A’s children, their heirs and assigns forever,” vests the title in those in esse, at the death of the testator.”

In the ease of Jenkins et al v. Freyer et al, Paige’s Chancery Reports, page 46-7, it is held:

“Where a legacy is given to a class of individuals, in general terms, as to the children of A. and no period is fixed for the payment of the legacy, it will be considered as due at the death of the testator; and only the children of A, who were either born or begotten previous to that time, were entitled to a share in the legacy.”

In the first Devereux and Battle’s Equity at page 393. in the case of Simms et al, v. Garrot et al, the court say:

‘'‘A legacy to the children of A, is to be divided among those born at the death of the testator.”

Applying this rule to the construction of this item of the will, we may. say that the youngest child of John Lawrence Hinkson and his wife, that is John Lawrence, Jr.,, does not participate in this devise.

Now as to the interests of the respective devisees in the matter of the Estate of Daniel Utz, Deceased, 43 Cal. page 200, the syllabus reads.

“Where a devise was made ‘to my youngest daughter, Margaret Utz and to her children.’ Held, that Margaret’s children became devisees as well as Margaret herself, and that the devise passed an estate in common to all.”

Alexander, in the 2d volume of his work on wills at section 952, says:

“Under a devise to one and his children if there be childreli living at the time of the testator’s death, or at the date of the will, they will ordinarily take under such a devise with their parents as joint tenants.”

As there is no such thing as joint tenancy in this state, the words “tenancy in common” would properly be substituted under such a ruling.

Our opinion from the foregoing is that the plaintiff and the defendants in this ease other than John Lawrence. Jr., are tenants in common of the real estate devised in Item 2. of Jacob Leisz’s will.  