
    (Jefferson County Court of Common Pleas.)
    January Term, 1898.
    JOHN C. MATHER, EXECUTOR v. JAMES COPELAND et al.
    1. The provision of the statute of wills (5971 Rev. Stat.), providing against the failure of a devise to a child or other relative of a testator when the devisee shall have been dead at the time of the making of the will, applies to a devise to “children” as a class.
    2. C. devised the residue of his real and personal estate to be equally divided among the children of his brothers and sisters. Eleven of the children were dead at the time of the making of the will, but each left issue surviving the ’testator. Held: That the devise included all the children, living and dead, of testator’s brothers and sisters, and that under the provisions of sec. 5971, Rev. Stat., the surviving issue (legal representatives) of each of the eleven dead children take the share of the devise, to the children of testator’s brothers and sisters, which the deceased child'would have taken if alive, and that such was the intention of the testator.
   MANSFIELD, J.

The plaintiff brings this action to obtain a construction of the will of Joseph Copeland, and asks direction of the court as to the distribution of his estate under said will.

The items of the will requiring interpretation, read as follows:

“Item 2. I will and bequeath to my brothers’and sisters’children,to share equal ly, all my personal property (excepting certain specific bequests), to be distributed by my executor in one year after my death, or as soon thereafter as possible.”
Item 4 of said will, after other provisions, and after giving the use of the Lyle farm to parties therein named, for five years on certain conditions, or forfeit the use of the same, provides as to said Lyle farm of 100 acres, as follows: “I direct to be sold and distributed as the other real estate hereafter to be disposed of, or at the expiration of five years, to be sold and divided equally between my heirs at law.”
“Item 5. I hereby direct that the residue of my real estate, of whatever kind, be sold at the expiration of three years after my death, or as soon as practicable thereafter, and the proceeds divided equally between my brothers’and siBters’ children.”

The will was made October 8, 1896, and on November 3, 1896, Mr. Copeland died, aged about 97. The testator never married.

He had, however, eight brothers and sisters, all of whom died prior to the making of the will.

These eight brothers and sisters had thirty-nine children, of whom twenty-eight were living at the time the will was made and at the death of the testator. These twenty-eight nephews and nieces of the testator lay claim to all the property bequeathed to the children of testator’s brothers and sisters by the second and fifth items of the will, because they are the survivors of such children.

The other eleven children of the tesiator’s brothers and sisters were dead at the time the will was made; but they left surviving them and the testator, forty-eight children and nine grand-children (children of deceased children), who claim to be beneficiaries under the will to that portion of the estate which the eleven deceased children would have taken had they survived the testator.

The claimants, therefore, under this will, are 28 ch’ldren, 48 grand-children, and 9 great-grand-chi'ldren. of testator’s brothers and sisters, all of whom are his heirs at law, and would have inherited his property had he died intestate.

It is evident that the legatees take under this will per capita, and not per stirpes, as the bequest is to a class. If the class consists of 39 persons, that being the number of the living and dead children of testator’s brothers and sisters, then the fund should be divided into 39 parts, and distributed to those legally entitled thereto, according as their interests may appear. If the class consists of but 28 persons, to wit: the children of testator’s brothers and sisters who survived the testator, then the fund should be divided equally among the 28 claimants.

What was the intention of the testator, as expressed in the will? Was it to limit the objects of his bounty,to his 28 living nephews and nieces? or, was it his purpose to include among the objects of his bounty the legal representatives of his dead nephews and nieces as well? If the latter, then the will embraces not only the children of his brothers and sisters, but also grand-children and great-grand-children.

The exposition of wills has always been governed by the intention of the testator. It is said that intention is the pole-star in the direction of devises. This intention is to be gathered, not necessarily alone from the phraseology of the particular clause to be construed, but from the whole will, including codicils, if any; and all these viewed in the light cast upon them by the relations and circumstances of the testator, of his estate, and of the objects of his bounty. Such intention, when ascertained, is to govern; and in searching for such intention, courts ought not to permit themselves to be enslaved by mere technical rules of construction.

It is admitted that the word “children” does not, ordinarily and properly speaking, comprehend grand-children, or issue generally.

The legal construction of the word “children” accords with its popular signification : namely, as designating the immediate off-spring; and does not include grand-children and great-grand-children in the absence of something showing a contrary, intent. Jarman on Wills, sec. 1000.

“Children, though presumptively a word of purchase, may be a word of limitation,so as to mean descendants. 37 N. Y., 42.”

There are two cases where the word children may comirahend grand-children, or issue generally, but I will not discuss them here, any more than to say, that if it be necessary and proper to effectuate the intention of the testator, it will be given that construction.

It is apparent, therefore, that if these grand-nephews and nieces and great-grandnephews and nieces, take under the second and fifth items of the will, it must be because : '

First: — The testator used other words in his will showing that he did not intend to use the word “children” in its proper actual meaning, but in a more extended sense, and that it was his intention to include them in the bequests to “the children of his brothers and sisters,” or,

Second: — That the testator meant to include in his bequests all his nephews and nieces, as a class, the dead as well as' the living, and that the issue or the legal representatives of the dead nephews and nieces take by way of substitution under and by virtue of sec. 5971, of the Rev. Statutes.

The first proposition I will not discuss any more than to say that it is by no means clear that he used the word children in its proper actual meaning, for he indicates a different intention when in the fourth item he directed the proceeds of. the Lyle farm to be divided “equally between my heirs at law.” The will,in all its parts,breathes the spirit of equality. It bears unmistakable evidence of regard and affection for all the objects of his bounty. Every one is included in the phrase “my heirs at law,” showing clearly that in his last and final gristing he bore hatred towards none. I am clearly convinced that the testator believed and intended that all the heirs who would participate in the distribution of the proceeds of the Lyle farm, would also participate in the same proportion in the distributon of the fund under the second and fifth items, but I am not prepared to hold that the will will bear that construction unaided by statute.

Now, as to the other proposition that these grand-children and great-grand-children take by way of substitution, what their ancestors (the eleven deceased nephews and nieces), would have taken under the bequest to the children of testator’s brothers and sisters, had they survived the testator. It must not be forgotten that these eleven nephews and neices were dead at the time of the making of the will.

By the rule of the common law, a bequest to one who was at the time dead was void, and to one living when the will was made, but dying before the testator, the devise went to the residue, or to the heir, but in devises to children as a class, where none are named, as in this case, where one of the class died before the testator, his interest passed to those of the class surviving.

In Jarman on Wills, 6th Ed., 167, the author says : “An immediate gift to children (a gift to take effect in possession immediately on the testator’s decease), whether it be to the children of a living or a deceased person, and whether to children simply, or to all the children, and whether there be a gift over in case of the decease of any of the children under age or not, comprehends the children thing at the testator’s death, (if any) and those only.”

Again he says: “Classes fluctuate-both by diminution and by increase. But if the testator,after a gift to “childern, ” proceeds to name them, or he specifies their number, as by giving to the five children of A., this is a deBignatio personarum, and is a bequest to those who are named, or to the five in existence at the date of the will, and the shares of any who die before the testator lapse. ’ ’

.It follows, therefore, that if no change has been made by statute in the rule adopted by courts for the construction of a devise to children as á class who are not named, that the construction claimed by the 28 surviving nephews and nieces must prevail, however unjust it may seem.. Hawk on Wills, chap. 7; 46 Ohio St., 313. Several statutes have been enacted to cure what was an unwise rule of the common law; and, by a statute in force when this will was made,it is provided:

“Sec. 5971. When a de\ Í3e of real or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testaror, in either case such issue shall take the estate devised in the same manner as the devisee would have done if he had survived the testator; or if such devisee shall leave no such issue, and the devise be of a residuary estate to him or her, and other child or relative of the testator, the estate devised shall pass to, and vest in such residuary devisee surviving the testator, unless a different disposition shall. he made or required by the will.”

It is true that this statute is in derogation of the common law, but by sec. 4948, Rev. Stat.,it “shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.”

Now, what unwise rules of the common law was it the object of sec. 5971, to remedy? Surely not to make valid that which was a void legacy under the common law, for the word “if such child or other relative shall have been dead at the time of the making of the will, leaving issue surviving the testator, such issue shall take the estate devised,’’etc., preclude any such intention. Nor was it the purpose of the statute to prevent the failure or lapsing of a legacy by the death of the legatee before the testator, for it does not contain the negative clause,“shall not lapse, ”as does the statutes of Maryland and Georgia and some other states, but simply affirms that the issue of such deceased devisee surviving the testator, shall take what the deceased would have taken, had he survived. Every legacy is said to lapse that fails by reason of the death of the legatee in the life of the testator; and as I have, already said, a legacy to one who was at the time dead, was void. The disposition made by the law of a void or lapsed legacy, in the absence of any statutory provision, is not material. Whether it went to residuary legatees, or to the heir, or to the survivors of a class, did not affect the essbntial character of the extinguished gift; for the same result would follow whether the legatee died before or after the making of the will.

“It was not because the extinguished legacy or devise was disposed of by the law in one way raiher than another, that the statute was adopted, but because it did not go to the issue of the deceased devisee, as the testator in all probability supposed it would. In other words, it was not designed to prevent the failure of a legacy by the death of the legatee before the testator, that were impossible ; but to make a new disposition by law of such legacy, where the testator had himself failed to do so, in anticipation of the possible death of any one of the'chosen objects of his bounty before himself, where such object was a child or other relative of his.

“Hence, the only question that can arise in the construction of a will under this statute is, whether it, as a matter of fact, contains a devise of real or personal estate to a child or other relative of the testator, which such devisee would have taken had he survived the testator; if so, then by the express language of the statute, the issue of such devisee surviving the testator,shall take the estate devised m the same manner as the devisee would have done if he had survived the testator, unless a different disposition shall be made or required by the will. ” Woolley v. Paxson, 46 Ohio St., p. 315.

Under the words of the statute, “if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter,” etc., the question must first be determined, who are the devisees or legatees included in the will, before their issue can be substituted as devisees.

In a well considered case reported in the 46 Ohio St., 307, our supreme court has held, that where a devise is made to children as a class, and one of the children should die after the making of the will and before the testator, that the issue of such deceased child would take what the deceased child would have taken had he survived the testator.

It is proper, however, to say the question did not arise in that case as to what would have been the effect, under the statute, of the death of a devisee before the making of the will. In the light of this decision, it can scarcely be said that the point for determination is one of first impression, for it does seem to me that the solid and sensible reasoning of the learned judge is strong enough and broad enough to be carried a step farther, so as to embrace children who were dead at the making of the will, without weakening its force, and thereby cause their issue to be substituted as the real beneficiaries under the will. Any other conclusion would render the words of the statute, “if such child or other relative shall have been dead at the time o.f the making of the will,” void and of no effect when the devisee happened to be one of a class; and as the decision above referred to, expressly holds that the statute applies to a devise to “children” as a class, it necessarily follows that the object and purpose of the statute was to thereafter prevent both the survivorship and the lapse of the common law, and thus allow a construction of wills more in harmony with the usual and natural feelings and views, and, therefore, presumed intention of testators.

The evidence shows that the testator knew that some of his nephews and nieces were dead.

The adverse argument is based upon the distinction between void and lapsed devises where the devisee is named in the will, and the doctrine of survivorship under a devise to a class, where none are named, for it is conceded that had these eleven dead nephews and nieces been referred to by name in the will, their issue would take, as was held in Nutter v. Vickery, 64 Me., 498; Minter’s Appeal, 40 Pa. St., 111; and Wildberger v. Cheeks, Ex’rs., 27 S. E., 441. And the case of Woolley v. Paxson, 46 Ohio St., supra, settles the doctrine that has they died after the making of the will,their issue would take.

It is also contended, that because he knew some of the children were dead, it cannot be presumed that he intended to give any portion of his estate to a person he knew was not then living, and that therefore he intended to embrace in his will the living children only, and that as all these survived the testator, there was neither a void or lapsed devise arising under the will to be saved by the statute.

It does not follow, however, that because the testator did not mean to devise any part of his estate to a child known by him to be dead, we should presume he intended to disinherit the issue or descendants of such deceased child.

I can find no valid reason for holding that the statute applies and saves a legacy to the issue of the legatee who was dead when the will was made, simply because the legatee happened to be referred to by name, and that it does not apply where the devise is to a class, some of whom happen to be dead at the time. Wherefore the distinction?

“The fact that the child or relative is not mentioned by name should not defeat the application of the statute, where the language applied to the facts, as they were at the execution of the will, designated a child or relative as an object of the testator’s bounty, with as much certainty as if it were mentioned by name.” Minshall, J., in Woolley v. Paxson, supra.

It is said in argument, that the testator meant the living children only. The will does not, in express terms, so declare. Neither does it declare, in express terms that he intended to include the dead children or their issue; but I think that the words of the statute, “shall have been dead at the time of the making of the will,” refer to, and include the deceased members of a class, whether they are referred to in the will by name or in a collective sense, and that under the will in question, the issue or legal representatives of the eleven dead children are entitled to that share or portion of the estate which they would have received had they survived the testator, and that such was the intention of the testator.

D. M. Gruber, for plaintiff.

John M. Cook, J. C. Bigger, for nephews and nieces.

R. G. Richards and P. P. Lewis, of Steubenville, D. Cunningham, John B. Busby & W. T. Perry, of Cadiz; Healea & Greene, of Uhrichsville; J. E. Griffith, of Marysville, for grand-nephews and nieces.

In support of this conclusion, in addition to the authorities already referred to, I cite the case of Chenault v. Chenault, 11 S. W. R., 424, a case arising under the Kentucky statute which is similar to ours, where it was held “that a devise of property to be equally divided among the children of testator’s brothers and sisters will inure to the benefit of a grandson of testator’s deceased brother whose father was dead before the execution of the will. ” While it is true that in Kentucky there are two statutes, both of which were construed together in the above case, yet the general principle is the same. Fuller v. Martin, et al., 29 S. W. R., 315 — another Kentucky case. In this case, at the time the testator made his will, and when he died, he had one brother and five sisters living, two brothers and one sister having previously died, leaving issue. By the will, he gave to his “brothers and sisters”all his property equally. Held, “that it was his intention to include all his biothers and sisters, living and dead, in the provision, so as to provide for the issue of those who were dead. ”

The decision in this case is remarkable, in that it states that the statute can render no aid in the solution of the question, completely overlooking Chenault v. Chenault, supra, and decides the case on the peculiar phraseology of the will, for the court say: “It seems to us,that as the words used can not be applied asa description of living objects, he must have intended to describe all his brothers. He could not properly describe his living brother as “brothers;” and. if effect be given the language used, we must suppose that the testator, knowing that the issue of the dead brothers and sisters took by substitution, meant to include all his brothers and sisters as a class, the dead as well as the living,” and refers to Huntress v. Place, 137 Mass., 409, as authority for the doctrine. Dehaven v. Oglesby, 38 S. W., 145, is a case similar to the one at bar, in which the case of Chenault v Chenault, supra, is cited and approved. Wildberger v. Cheeks, Ex’rs., 27 S. E., 441. For contrary doctrine see Almy v. Jones et al., 21 Atlantic Reporter, 616; Williams v. Knight, 27 Altantic Rep., 210. Both these cases are Rhode Island cases, but the statute of that state is unlike ours, in that it makes one provision in express terms, to provide for the disposition of a legacy where the devisee was dead when the will was made. Buzby v. Roberts, et al., 32 Atlantic, 9, is a case relied on by counsel for the 28 children. Also Martin v. Trustees of Mercer University, 25 S. E. R., 522, Supreme Court of Georgia. The statute of Georgia is identical with ours except that it contains the negative clause, “shall not lapse.” In this case, under a bequest “to each of my immediate nephews and nieces, $1,000.00 apiece, ” it was held that the gifts embraced in the words quoted, were to persons of a class, and included only those who were living at the testator’s death, and that the children of nephews who died before the testator, took nothing.

The court say : “The statute was passed to prevent a legacy from lapsirg when the legatee is ascertained. If what we have already said is sound, no person of a class can be a legatee unless he is living at the time of the testator’s death. Thirteen of these nephews and nieces being dead at the time of testator’s death,- — they could not be legatees under the will; 'and of course,if they were not legatees, this section of the Code cannot apply to them, and their children or grand children cannot take anything under it. ”

This case is in direct conflict with our own supreme court in holding that the statute does not apply to a class, and, of course, cannot be followed.

One other perplexing question remains, arising under the 4th item of the will. In the distribution of the proceeds of the Lyle farm, do the heirs at law take per capita or per stirpes? - The use of the word “equally” would indicate the former, but I can see no just reason for directing a distribution under this item different from that under items 2 and 5.

It therefore follows that the issue or descendants of trióse children of the testator’s brothers and sisters who were dead at the time the will washnade, are entitled to the respective shares of the estate which their several ancestors would have taken if alive, and the same is decreed accordingly.  