
    The German Mutual Insurance Company v. Lushey et al.
    
      Testatrix, having child living, devises all estate to husband— An after-born child will inherit from mother as heir at law —Law of wills.
    
    Where a testatrix, having a child living, devises all her estate to a third person (in this case her husband), without making provision in her will for an after-born child, such after-born child, if it survive the testatrix, by virtue of the provisions of Sec. 5961, Rev. Sta.t., will inherit from the mother as her heir at law, as if she died intestate, notwithstanding, that by clear and explicit language in the will, such testatrix undertakes to disinherit such after-born child.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Hamilton county.
    In September, 1898, the plaintiff in error filed its petition in the court of common pleas of Hamilton county, to foreclose a mortgage given by George Lushey, September 30,1892, to secure a note to plaintiff in error, for the sum of ten thousand dollars, payable one year after date, with interest payable semiannually. This mortgage covered real estate in the city of Cincinnati. Interest was paid on the mortgage to September 30, 1897, after which no further payments were made.
    
      Whatever title George Lushey had in and to the premises so incumbered, rests entirely in the last will and testament of his wife, Carrie Lushey, executed on the 11th day of June, 1872. Harry W. Lushey, a son of the testatrix, answered the petition of the insurance company, plaintiff in error, alleging title in himself to the undivided one-half of the premises described in the mortgage, which title he derived from said Carrie Lushey as one of her heirs at law; and he prayed that his title be quieted as against the insurance company and its claims under said mortgage. On the trial of the case to the court without a jury, the facts were found and conclusions of law stated, as follows:
    “That Caroline Lushey, late of Hamilton county, Ohio, being seized of the fee simple title to the premises described in the petition, on the 11th day of June, 1872, made and executed her last will and testament, of which the following is a copy :
    “In the name of the Benevolent Father of all, I, Caroline Lushey, wife of George Lushey, of the city of Cincinnati, county of Hamilton and state of Ohio, do make and publish this my last will and testament. I give and devise to my beloved husband, George Lushey, all of my estate, real and personal, of which I may die seized and possessed, to have and to hold the same to myself, his heirs and assigns forever. Should any child or children, toe now having only one,George Gabriel, be born to me hereafter, it shall in no wise alter or revoke this will and testament. Should my husband, George Lushey’s, decease precede my owm, it is my will that Julius Benckenstein shall act as trustee of my estate, real and personal, and guardian of my child or children, and I ask the probate court to ratify this appointment. Said trustee shall manage said estate as to him may seem advisable for the best interest of my child or children, and shall have full power to sell or convey any portion or all of said estate, real or personal, and shall render an account of his doings as such trustee when the youngest of my children shall come of age and shall then pay or turn over said estate and the proceeds of the balance .thereof to my said child or children. Said trustee shall, before entering upon the discharge of said trust, file his bond with two good and sufficient sureties in the probate court of Hamilton county, Ohio, conditioned for the faithful performance of his duties as said trustee in double the appraised value of my estate, real and personal. In such event no executor or administrator shall be appointed, but said trustee shall pay all of the indebtedness of my estate out of the same. I desire that no appraisement shaft be made should my husband, George Lushey, survive me, and in that event the said George Lushey shall act as executor of my last will and testament without any bond being required of him, and the said probate court of Hamilton county, Ohio, is requested to ratify said appointment and to direct the omission of any such bond.
    In testimony whereof I have hereunto signed my name this 11th day of June, A. D. 1872, at Cincinnati, Ohio.
    “Carrie Lushey.
    “Attested and subscribed by us as witnesses in presence of Caroline Lushey and of each other, we having seen her subscribe her name to and heard her acknowledge the above as her last will and testament.
    “L. W. Goss,
    “Gabriel Benckenstein.
    
      “That on the 8th day of March, 1879, the said will was duly admitted to probate and no proceedings were instituted to set aside the said will, and said will is in full force and effect.
    “At the time said Caroline Lushey executed her said last will and testament she was the wife of the defendant, George Lushey, and one child, named George Gabriel Lushey, had been born to said Caroline Lushey and George Lushey, and was living at the time said will was executed.
    “After executing said will another child, the defendant, Harry W. Lushey, was born to the said Caroline and George Lushey. The said Caroline Lushey died in June, 1878, seized in fee simple of the premises described in the petition, and leaving the defendant, Harry W. Lushey, and his brother George Gabriel Lushey her only children and sole heirs at law, and also leaving the defendant, George Lushey, her husband, surviving her.
    “That on the 30th day of September, 1892, George Lushey being in possession of the premises described in the petition executed and delivered to the plaintiff, The German Mutual Insurance Company, a corporation duly organized under the laws of the state of Ohio, for a valuable consideration his promissory note of that date, whereby he promised to pay the German Mutual Insurance Company or order'the sum of ten thousand dollars in one year after date at six per cent, interest, interest payable semi-annually.
    “That the interest on said note has been paid up to March 30, 1897.
    “That said note is due and that no payment has been made thereon.
    “That in order to secure the payment of said note said George Lushey, at the time of the execution of' said note, executed and delivered to the German Mutual Insurance Company his certain mortgage deed and thereby conveyed to the said German Mutual Insurance Company the premises set out in the petition.
    “That said mortgage deed was on the 30th day of September, 1892, duly recorded in book 652, page 40,' of the mortgage records of Hamilton county, Ohio.
    “That on or about the first day of February, 1898, the said George Lushey, in consideration of one dollar, executed and delivered, his certain deed of general warranty, conveying to his son, Harry W. Lushey; among other property the real estate described in the petition, which deed was recorded February 3,1898.
    “The court finds as conclusions of law that the said Caroline Lushey, by her said will, intended to disinherit the said Harry W. Lushey, but that such intention was contrary to the provisions of Sec. 5961, Rev. Stat., which section provided in terms that.where a party has one child then living and executes a will and afterwards a child is born to such person, such afterborn child shall have his share the same as if the testator had died intestate.
    “Under this construction it gives to the afterborn child his share in his mother’s estate and the child then living receives nothing, the father receiving the ether portion.”
    The court rendered a judgment on the findings against George Lushey, the mortgagor, for the amount of the note and interest, and ordered his undivided half of the premises to be sold, and quieted the title of Harry TV. Lushey to the other half.
    The motion of the insurance company for a new trial was overruled, and it prosecuted error in the circuit court where the judgment of the common pleas was affirmed.
    
      The case is here on error to obtain a reversal of the judgments of the lower courts.
    
      Mr. Chris Von Seggern and Messrs. 'Ratterman <£ Ward, for plaintiff in error, cited the following authorities:
    Sedgwick on Statutory Const. Law, 247; Doyle v. Doyle, 50 Ohio St., 330; Rhodes v. Weldy, 46 Ohio St., 234; 39 Am. Dec., 740; Bowen v. Hoxie, 137 Mass., 527; Wilder v. Goss, 14 Mass., 356; Block v. Block, 3 Mo., 594; Hockensmith v. Slusher, 26 Mo., 237; McCourtney v. Mathes, 47 Mo., 533; Gay v. Gay, 84 Ala., 38; Alden v. Johnson, 63 Iowa, 124; Williard’s Estate, 68 Pa. St., 327; Waterman v. Hawkins, 63 Me., 156; Hirn v. State, 1 Ohio St., 15; Dodge v. Gridley, 10 Ohio, 173; Sawyer v. State, 45 Ohio St., 343; Goodall v. Brewing Co., 56 Ohio St., 257; Teaff v. Ross, 1 Ohio St., 469; Ash v. Ash, 9 Ohio St., 383; Terry v. Foster, 1 Mass., 146; Mayo v. Boyd, 3 Mass., 13, 21; Merrill v. Sanborn, 2 N. H., 499.
    
      Messrs. Renner, Gordon & Renner, for defendants in error, cited the following authorities:
    
      Rhodes v. Weldy, 46 Ohio St., 234; Hollingsworth’s Appeal, 51 Pa. St., 518; Ash v. Ash, 9 Ohio St., 383; Evans v. Anderson, 15 Ohio St., 324; Chace v. Chace, 6 R. I., 407; Trust and Deposit Co. v. Trust Co., 36 Fed. Rep., 863; Gage v. Gage, 29 N. H. (9 Foster), 533; Waterman v. Hawkins, 63 Me., 156; Walker v. Hall, 34 Pa. St., 483; Williard’s Appeal, 68 Pa. St., 327; Branton v. Branton, 23 Ark., 569; Marston v. Fox, 8 Adolph. & E.; Holloman v. Copeland, 10 Ga., 79; Talbird, v. Verdier, 1 Desaus., 592; Bowen v. Hoxie, 137 Mass., 527; McCullum v. McKenzie, 26 Ia., 510; 
      Grosvenor v. Fogg, 81 Pa. St., 400; Morgan v. Davenport, 60 Tex., 230; Hughes v. Hughes, 37 Ind., 183, 185; Carter v. Reddish, 32 Ohio St., 1.
   By the Court :

We agree with counsel for plaintiff in error, that the power to dispose of property in this state by will is conferred by statute, and that the authority to make the will is found in section 5914 of the Revised Statutes.

By virtue of this section “Any person of full age and of sound mind and memory, and not under any restraint, having any property, personal or real, or any interest therein, may give and bequeath the same to any person by last will and testament lawfully executed.” This is an old and general provision, a,nd yet it does not leave to the owner of property a free hand to dispose f property, without limitations and restrictions. Th > very next section of the wills act, section 5915, places a limitation on the will making power, by providing that where the testator leaves issue of his body or an adopted child, devises and bequests to charitable purposes shall be invalid, unless such will shall have been executed at least one year before the decease of the testator.

The manner of execution of such instrument, and all steps for the probating and recording of the same, as well as the means of executing its provisions, are furnished by statute.

Another notable limitation on testamentary disposition exists in section 4200, Revised Statutes, restricting the entailment of estates by deed or will, and there are other instances of legislative restraint found in our wills act. Yery prominent among them is section 5961, which directly bears upon and determines the controversy in this case. It reads:

“Section 5961. [Child reported dead, or born after will made, to have portion of estate.] When a testator, at the time of executing his will, shall have a child absent and reported to be dead, or having a child at the time of executing the will, shall afterward have a child who is not provided for in the will, the absent child, or the child.born after the execution of the will, shall take the same share of the estate, both real and personal, that he would have been entitled to if the testator had died intestate,” etc.

The remainder of the section not quoted, relates to the method of ascertaining and supplying to the after-born child his share of the estate. The record in this case shows, and it is stated in the will itself, that, when it was executed the testatrix had one child then' living — George Gabriel Lushey — and, after its execution she gave birth to another child, Harry W. Lushey — who is the defendant in error. The event of his birth, after the will was made, brought section 5961 into operation, and when the testatrix died, in June, 1878, Harry W. became her heir at law and entitled to one-half of the estate. This is so, by reason of this statute, although the testatrix endeavored to guard against it by express provision, where she said: “Should any child or children, we having now only one, George Gabriel, be born to me hereafter, it shall in no ioise alter or revoke this toill and' testament This indicates that the law of such event was under consideration when the will was drafted, and it may have been then thought, as is now argued for plaintiff in error, that a clear expression concerning an after-born child and her wishes touching it, stated in the will, would avoid the force of section 5961; and we are referred to section 5959, as containing a provision which will permit such a construction. But section 5959 does not cover a case where there is a child living at the time the will is executed, but provides for. a very different situation. These two sections are independent but not inconsistent provisions. Each covers a case not covered by the other. Both have been in force as far back as 1840, at least. One of them much longer than that.

Counsel urge that, having contemplated the probability of the birth of another child after the date of her will, and having, expressed a determination to disinherit it, her will should stand and that we should so construe section 5961 as to let it have its intended effect. But the language is not a provision for, but is one against the after-born child.

It seems to us that the open and avowed disregard of the words of the statute is entitled to no higher consideration than a silent omission to mention and provide for such child. One course is no more potent than the other. She could neither suspend nor repeal the law, and it is not within the power of this court to do so. Many cases have been cited from other states construing their statutes on kindred subjects, but they are fruitless here, when we consider the plain and uncompromising language of our own legislation. We do not undertake to give reasons for the difference between section 5959 and section 5961, but it is our duty to enforce each when a case arises to which one or the other applies.

By the terms of the will, the testatrix cut off George Gabriel, the living child, and by the subsequent birth of Harry W. and the death of the testatrix, he inherited one-half of the estate of the mother just as if she had died intestate.

It follows, therefore, that George Lushey, the husband of the testatrix, when he gave the mortgage to plaintiff in error, owned but one-half of the premises described in the'mortgage, and that the judgment of the court of common pleas was right, and that the circuit court did not err in affirming the judgment.

Judgment affirmed.

Burket, Davis and Price, JJ., concur.  