
    Mooney, Guardian, etc. v. Purpus, Executor, etc., et al.
    
      Residuary' estate bequeathed by testator — To lawful heirs — ■ “Share and share alike’'' — Heirs take per capita and not per stirpes — Construction of wills.
    
    Where a testator bequeaths his residuary estate to his lawful-heirs, without other or further designation as to who are intended as his beneficiaries; and by his will directs that such residuum “shall be equally divided amongst my lawful heirs, share and share alike.” Held: That all persons who at the. time of the testator’s death answer the description, his “lawful heirs,” are entitled to share in such residuary estate, regardless of the degree of their relationship to the testator; and in the distribution of said estate such heirs take per capita and not per stirpes. ,
    (No. 8343
    Decided April 12, 1904.)
    Error to the Circuit Court of Auglaize county.
    Petition was filed in tfie court of common pleas of Auglaize county by tbe defendant in error, Edward Purpus, as executor of tbe will of Frank Koehl, deceased, praying for a construction of said will and asking tbe advice and direction of said court how— properly, to execute and administer bis trust under tbe provisions of said will. Tbe will contained the ■following provisions;
    
      “First. My will is tbat all ray just debts and funeral expenses shall be paid out of my estate as. soon after my decease as shall be found convenient..
    
      “Second. I give, devise and bequeath to my son, Pearl Koehl, tbe corner lot and building, situate on tbe corner of Spring and Main streets with tbe lot extending to Front street whereon tbe stable building, to be bis forever, after my decease, except tbe lot' and brick building whereon at present a drugstore and department store is in with tbe lot belonging' to the same is hereby devised and bequeathed to my daughter, Emma Federspiel, to be hers forever after my decease.
    
      “Third. I bequeath and devise to my daughter, Emma Federspiel, and my son, Pearl Koehl, all personal property now contained in the corner building, Spring and Main streets, to be theirs forever, share and share alike.
    
      “Fourth. Whatever there remains after my decease shall be equally divided amongst my lawful heirs, share and share alike. ’ ’
    Upon the hearing of the case in the court of common pleas that court made and entered the following decree: ‘
    “The court further finds that the correct and lawful construction of said will of said Frank Koehl, Sr., deceased, is as follows, to-wit:
    
      “First. That Philip Pearl Koehl and Emma Federspiel are among the residuary legatees and each share equal, with all the other such legatees in the residuum of said estate, under item four of said last will and testament of said Frank Koehl, Sr., deceased.
    
      “Second. That the bequests of personal property contained in the building at the corner of Spring and Main streets in St. Marys, Ohio, bequeaths all tangible personal property therein contained, including the money, to Philip Pearl Koehl and Emma Federspiel, but does not bequeath to them the notes, mortgages, certificates of stock, accounts, credits and other evidences of indebtedness or the property they represent, but that these go into the residuum of testator’s estate, and should be disposed of as directed in the fourth item of the will.
    
      “Third. That Emil Henry Koehl and Louisa Maria Koehl under item four of said last will and testament, take per capita and not per stirpes.
    
    
      “Fourth. The court further finds that item one and two of said last will and testament are plain and unambiguous, and need no construction or interpretation.
    “It is therefore ordered, adjudged and decreed that Edward Purpus, as executor of said last will and testament of Prank Koehl, Sr., deceased, be governed in the administration of said estate and in making distribution thereof, by the terms of the pro-. visions of said last will and testament, and the construction placed thereon as hereinbefore set out.”
    An appeal was taken from this decree to the circuit court of Auglaize county, where a like construction was, by that court, given the provisions of said will, except as to item four thereof. As to item four the circuit court found and held, that under and by the provisions thereof Emil Henry Koehl and Louisa Maria Koehl, who were grandchildren of said testator, took per stirpes and not per capita, and ordered and decreed that distribution be made accordingly. To obtain a reversal of this order and decree of the circuit court, plaintiff in error, as guardian of said Emil Henry Koehl and Louisa Maria Koehl, prosecutes this proceeding in error. Other facts are stated in the opinion.
    
      Mr. D. F. Mooney and Mr. E. B. Kinkead, for plaintiff in error.
    The rule of construction to be applied to clauses in wills like the one under consideration may be summarized thus:
    Where a testator bequeaths or devises property to his heirs of different classes, as children and grandchildren, without using language showing a manifest intent that the different classes are to receive an equal division, then U -will bo presumed that the testator intended ill,-it fclwy wi'i take in the manner or by the mode by which they would take under the-law of descent and distribution, resort to such statutes being necessary in such case.
    ' But wherever a testator in making provision for his heirs of different classes, as in providing for the-disposition of the residuum of his estate, after making specific devises, says that such residuum shall pass to all his heirs, or lawful heirs, and uses language reasonably indicating that he intended an equal division, even without naming all his heirs either in the will itself or in the dispositive clause, it will be presumed that he had in mind all his heirs, both children and grandchildren, and that he intended to make equal division for them all.
    The will must be the sole guide in such cases, it being improper to resort to the statutes of descent or-to extrinsic evidence. The words “shall be equally divided amongst my lawful heirs, share and share alike,” is language clearly indicating such intention.
    The rules which we have just stated in our own language are fairly deducible from all the authorities, as we would apply them to this case, and is the law in Ohio, Missouri, North Carolina, Oregon, New York and Virginia, but not in Pennsylvania and Illinois. The law in the two latter states is opposed to our contention, in Pennsylvania flatly so because the language construed is quite similar to that in the will in this case, although it lacks the significant words which are in the clause of the will in our case, “share and share alike.”
    Upon reflection it is perhaps not true that the doctrine of the Pennsylvania and Illinois cases is. different from what we have above stated, and as shown by the cases, but the courts in these two states have differently applied the rule of construction to language of similar import. Bisson v. Railroad Co., 143 N. Y., 125; Tuttle v. Puitt, 68 N. C., 543; Walker v. Webster, 95 Va., 377; Johnston v. Knight, 117 N. C., 122; Marsh v. Dellinger, 127 N. C., 360; Maguire v. Moore, 108 Mo., 267; Hoch’s Estate, 154 Pa. St., 417; Kirkpatrick v. Kirkpatrick, 197 Ill., 144; Huston v. Crook, 38 Ohio St., 328; McKelvey v. McKelvey, 43 Ohio St., 213.
    
      Messrs. Koenig & Koenig, for defendants in error.
    All parts of the will must be construed together, and effect, if possible given to every word contained in it. Townsend’s Executors v. Townsend et al., 25 Ohio St., 477.
    Words in a will are to be understood according to their ordinary, natural and legal signification, unless it is manifest from the context or from other provisions in the will, that the testator has used them in a different sense, and unless the sense in which they were used is clearly apparent. Carter v. Reddish et al., 32 Ohio St., 1.
    To ascertain who are included in the class designated as “heirs at law” reference must be had to the statutes of this state regulating descent and distribution of estates. The rule is established by the decision of the -court in Richards v. Miller, 62 Ill., 417, that if the statute must be invoked to ascertain the persons who take a devise or bequest by general description, its provision as to the quantity each shall take must also be observed. Kelley v. Vigas, 112 Ill., 242; Baggett v. Slack, 8 Metc., 450; Tillinghast v. Cook, 9 Metc., 143; Clark v. Lynch, 46 Barb., 81; Cummings v. Cummings, 146 Mass., 501; In re 
      
      Hoch’s Estate, 154 Pa. St., 417; 26 Am. Rep., 610; Hall et al. v. Hall et al., 140 Mass., 267; In re Rood’s Estate, 21 Pa. Co. Ct. Rep., 291; Jones v. Lloyd, 33 Ohio St., 573; Taylor v. Fauver, Va. Sup. Ct. of App., 28 S. E. Rep., 317; secs. 4158, 4159, 4162, 4166, Rev. Stat.
   Crew, J.

The only item in the will of Frank Koehl about which there is any controversy in this case is item four. The language of this item is as follows: “Whatever there remains after my decease shall be equally divided amongst my lawful heirs, share and share alike.” At the time of his death the testator, Frank Koehl, left surviving him as his sole and only heirs at law, his five children, who are defendants in error here, viz.: Frank Koehl, Jr., Emma Federspiel, Catharine Walters, Maggie Boesche and Pearl Koehl, and his two grandchildren, Emil Henry Koehl and Louisa Maria Koehl, plaintiffs in error, who were children of Louis Koehl, a son of said testator, who died more than eight years prior to the execution of said will. The question presented, here for determination, is whether under the provisions of said item four of the will of Frank Koehl the residuum of his estate thereby disposed of, is to be distributed among his “lawful heirs,” the children and grandchildren above named, in equal portions, and one-seventh part thereof given to each; or whether such residuum is to be divided into six equal parts, and one-sixth given to each of the five children of testator, and the remaining sixth to his two grandchildren. In short is the' distribution of said residuum, under item four, to be made per stirpes or per capita. It was contended in the courts below and is the contention of defendants in error here that where a testator bequeaths his estate, or the residuum thereof, to his heirs, or as in this case, to his “lawful heirs,” without other or further designation, and without naming them, thereby making necessary a resort to the statutes of descent and distribution in order to ascertain and determine who shall take under the will, that such devisees or legatees, when so ascertained, will take only in the proportion designated and prescribed by the statutes of descent and distribution, and, .if not of equal degree, they will take by right of representation;-or per stirpes and not per capita. That such is the general rule, in the absence of any specific direction by testator as to how, or in what proportion each shall take, would seem from the authorities, to be well settled. Richards v. Miller, 62 Ill., 417; Daggett v. Slack et al., 8 Metc., 450; West v. Rassman, 135 Ind., 278; Woodward v. James, 115 N. Y., 346; Eyer v. Beck, 70 Mich., 179; Conklin v. Davis, 63 Conn., 377; Kirkpatrick v. Kirkpatrick, 197 Ill., 144; Mattison v. Tanfield, 3 Beav., 131. But this rule, resting as it does upon the presumption, that because the testator has made necessary a resort to the statute, in order to determine who his donees are, that therefore he also intended, that the statute should govern and control as to the proportion each should take, can have no application to a case like the one at bar, where the testator has in clear and specific language prescribed and directed how such division shall be made as between those whom he has designated as his beneficiaries; viz. “equally, share and share alike.” Having so declared and directed, nothing is left for inference or presumption, as to the mode of distribution, and division must be made as directed by the testator. By item four of Ms will the testator, Frank Koehl, ¿ives the residue of his estate to a “class,” which in terms he therein designates by the general description, his “lawful heirs.” This being the only designation or description of those who were intended as beneficiaries under this clause of the will, of necessity, resort must be had to the statute, in ■order to determine who are the legal heirs of the testator within the meaning of tMs clause. In a -technical, or strict legal sense, neither the children or grandchildren of testator were at the time of the making of this will his heirs. Nemo est haeres ■viventis. But by reference to the statute we find •that all of them, both children and grandcMldren, are, within the purview and meaning of the statute, his “lawful heirs, ’’ inasmuch as without the will, all would be entitled, by. inheritance to share in the distribution of his estate. All then, being beneficiaries under item,four of this will, it only remains to ascertain their respective interests, and to determine the share to which each is entitled, upon a distribution of the residuum of testator’s estate, disposed of by this item of the will, and this must be ascertained and determined, if it may be, according to the intention of the testator as disclosed by the language of the will itself. In thus ascertaining the intention of testator, effect must be given to every word of the testamentary clause under consideration, without rejecting any of them, if this can be done by a reasonable construction, not inconsistent with the manifest intent and purpose of said testator, apparent from the whole will taken together. Quid-' ed then by this rule of construction, and there being nothing found elsewhere in said will to limit, control or vary the direction given by testator in item four, ■as to the method of distribution and division of the residuum of his estate, the .intention of the testator as to the manner in which such division should be made and as to the share each should take, would from the language employed by him in directing such división, seem entirely clear. By the phrase £<my lawful heirs” testator describes the objects of his bounty and designates who are to be his beneficiaries ; and by the words, ‘ ‘ equally, share and share alike, ’ ’ he defines and points out the manner in which they are to take the estate comprehended by the gift. If, as contended by counsel for defendants in error, the testator had meant that both the persons who were to take, and the manner of division, should be governed by, and should be in accordance with, the statutes of descent and distribution, and as if he had -died intestate, then item four of his will was entirely nseless, for in that case the same persons would take, and in the same manner, as if he had died leaving no will. Testator does not say that the persons designated as beneficiaries are to take in the same manner, and in like proportions, as though he should die intestate, but on the contrary, after describing those who are to be the objects of his bounty, by the general designation, ££my lawful heirs,” which includes both children and grandchildren, he, in clear and specific language, directs that division shall be made amongst them, ££equally, share and share alike.” Primarily, the object of making a will is tó direct another and different mode of distribution of the testator’s estate from that marked out by the law of descent. That Frank Koehl made a will, is a circumstance tending to show that he intended thereby to make provision for his heirs different from that which the law would make. And the fact that he made a will is a fact that weighs against snch construction of the provisions of item four of this will,, as is here contended for by counsel for defendants in error, because, if the construction for which they contend is to prevail, it would, at most, only accomplish that which the law itself would effect, in the absence of any such clause or provision, and it makes the insertion in this will, of item four, an idle and useless act on the part of the testator. There, being nothing in this will to suggest or require a different conclusion, we must presume and conclude that the testator, Frank Koehl, had a purpose and object in employing the particular language he did. employ, in item four, and from the language therein used by him, we think this intention is clear and unmistakable. By the use of the phrase “my lawful heirs” he manifestly intended that all those persons, who would be his heirs under the statute of descent,, in case of his intestacy, should be his beneficiaries, and should take the residuum of his estate. And by the use of the words"equally,share and share alike, ’’ he just as clearly evidenced the intention that they should not take such residuum in the manner prescribed by the statute, but should take it equally, share and share alike, as directed by his will. By reference to the statute we ascertain who are to take-under item four, and by the plain provisions of the will itself, we are told how they are to take, that is: “equally, share and share alike,” per capita and not per stirpes. Huston v. Crook, 38 Ohio St., 328; McKelvey v. McKelvey, 43 Ohio St., 213; Bisson et al. v. W. S. R. R. Co. et al., 143 N. Y., 125; Ramsey v. Stephenson, 34 Ore., 408; Walker et al. v. Webster et al., 95 Va., 377; Dowding v. Smith, 3 Beav., 541; Butler v. Stratton, 3 Brown’s Chancery Rep., 367; Page on Wills, sec. 554; Richards v. Miller, 62 Ill., 417.

We are of opinion that the circuit court erred in holding that the residuum of the estate of the testator Frank Koehl should, under item four of his will, he distributed per stirpes and not per capita, and for such error the decree of the circuit court in so far as it orders and directs distribution and division of the property disposed of by said item four, to be made per stirpes and not per capita is reversed, and judgment will be entered for the plaintiff in error, in accordance with this opinion.

Reversed and judgment for plaintiff in error,

Spear, C. J., Davis, Si-iauok, Price and Summers, JJ., concur.  