
    CONSTRUCTION OF WILL.
    Common Pleas Court of Crawford County.
    A. J. Brown, as Assignee, etc., v. John W. Hunsicker.
    Decided, July 28, 1919.
    
      Will Awkwardly Drawn by a Farmer — Meaning of Testator Ascertained by Eliminating Subordinate Phrases — Widow Held to have been Given the Fee in Land.
    
    In a will providing, “I give, devise and bequeath, to my wife Catherine Hunsiker all my personal property and real estate and I give the full control of all my property as above mentioned and shall be in her own name after my. death or if she wishes to do so and after her death it shall be divided equally among my legal heirs,” gives to the wife, Catherine, the fee to the land.
    
      L. G. Feighner, for plaintiff.
    W. G. Beer and O. W. Kennedy, for defendants.
   Wright, J.

This action was brought in the probate court by an assignee to sell real estate to pay the debts of the assignor, and now conies into this court on appeal. The assignee claims title to the real estate through the will of Win, Hunsicker, father of John W. Hunsicker, the assignor. The case involves the construction of the will of Wm. Hunsicker. The plaintiff claiming that Catharine Hunsicker, wife of the testator, received a life estate under his will, and the minor defendants by their guardian ad litem claim that the widow, Catharine Hunsicker, received the fee to the land under her husbands will, and that through the will of Catharine Hunsicker, the interest in the land sought to be sold came to them. There is no dispute over the will of Catharine Hunsicker, that she gave the land or the interest in dispute to them, subject to a small legacy payable to their father, John W. Hunsicker. So the only question to be decided is, whether Catharine Hunsicker, the widow, received a life estate or the fee under the will of her husband in the land sought to be sold.

It was admitted by counsel that Catharine Hunsicker received more by way of inheritance than her husband, but that their joint inheritances and accumulations were all in the husbands name, at the time of his death. It was also admitted that the will was drawn by a farmer, which seems an unnecessary admission, as a Craftsman is usually known by the fruits of his labor; and so long as the people will eat bread that is baked by the shoemaker or blacksmith they can expect the doctor and undertaker to reap rich rewards; and so long as the people will entrust the drafting of important legal instruments to the tiller of the soil or the drug clerk, who has been burdened with the high and exalted commission of notary public, they can expect the fruits of their ignorance to fill the dockets of the courts and that some of their accumulations will be consumed in righteous litigation.

The will consisted of a printed form. Item one is the usual printed clause providing for the payment of debts; item two is the written part of the will, which has no punctuation or paragraphing and reads as follows:

‘ ‘ Second — I Give, Devise, and Bequeath to My wife Catharine Hunsicker all my Personal Property and Real Estate and I Give the full controle of all my Property as above mentioned and shall be in Her own Name after My Death or if she wishes to do so and after Her death it shall be Divided Equal among my Legal Heirs.”

A large number of cases have been cited and commented upon by counsel in the case, none of which construe this will, or come near enough in the language used to give much aid to the court in, finding the intention of the testator in this case. So it remains the duty of the court to ascertain the intention of the testator from the words he has used and give effect to the legal consequences of that intention when ascertained. The grammatical construction, or rather ungrammatical construction or order of particular sentences in the will is not allowed to defeat the general intention of the testator, if that intention is clearly manifested by the provisions of the will as a whole.

Reading item second from the beginning to the conjunctive word “and” it is as follows:

“I, Give, Devise and Bequeath to My wife Catharine ITunsieker all My Personal Property and Real Estate. ’ ’

Thus far the testator gives his entire estate to his wife, including the fee in the land; there could be no other meaning given to the words used. Then follows this language:

1 ‘ and I give the full controle of all my property as above mentioned and shall be in Her own name after My Death.”

This sentence or expression apparently ratifies and strengthens the expression first quoted in giving his estate to his wife, because he intends her to have full control and his estate to be in her own name. To be sure she might have full control and have it in her own name during a life tenancy, if such was created, but the devise was not qualified or limited in any manner ; it was an unqualified devise of all of his estate to his wife.

Then follow the words, “or if she wishes to do so, and after her death it shall be divided equal among my legal heirs. ’ ’

In what manner does this clause qualify or limit the original gift made in fee.

If the words “or if she wishes to do so” are entirely eliminated, then it is clear that the following words ! ‘ and after her death it shall be divided equal among my legal heirs” would qualify the devise to the wife by giving the remainder to his legal heirs, leaving a life estate to the wife, as the intention of the testator. But to eliminate the words, “or if she wishes to do so” from the will, would in effect be making a new will for the testator, by the court, which the court can not do. Those words must be construed and given their meaning along with the entire will, to get the intention.

The clause or if she wishes to do so, is a simple expression which can have but one meaning, and must have been so understood by the testator and farmer drafting it, and that is, if the wife wishes after her death she can divide it equally among his legal heirs.

If the testator had said “I wish it to go after her death to my legal.heirs” then under the holding of the courts the word “wish” would be given the effect of the word “give”; but in this will the testator leaves it to his widow to do as she wishes “or if she wishes to do so, etc.,” which at most would amount to a recommendation or request to the wife.

The clear intent is that the wife Catharine have the fee in the land. The petition of plaintiff is therefore dismissed.  