
    Charch v. Charch, Exr. , et al.
    
      Beneficial association — Member may change beneficiary, when— Sections 3630 and 3630e, Revised Statutes— Will of husband directing payment to wife of money borrowed — Not a consideration for promise on her part — Interpretation of will — Intent of testator — ■Oral proof admitted, when — Rule of election tender will.
    
    
      \ Where a member of a beneficial association organized under section 3630, Revised Statutes, has caused the beneficial certificate issued by the association upon his life to be made payable to his wife, such member cannot change the beneficiary except in the mode pointed out by the by-laws of the association. And where such by laws provide that a change of beneficiary can be made only by surrender and issue of a new certificate, such change cannot be made (the wife being in life) by will. Arthur v. Odd Fellows' Ass’n., 29 Ohio St., 557, approved and followed.
    And the rule is not different where a like certificate is issued by an association organized in another state doing buisness in this state under section 3630^, Revised Statutes, where the statute which authorizes the organization permits the association to make by-laws regulating the payment of benefits, and by-laws made accordingly, require a surrender of the old and the issue of a new certificate in order to effect a change in the person of the beneficiary.
    2. A provision in the last will of a husband which directs the payment to his wife of a sum of money which is in fact but the return to her of money which he had borrowed from her and used for his own purposes, and was so understood by both parties at the time the will was executed, will not furnish a consideration to support a promise on her part to surrender to the estate property belonging to her in her own right, even though it should be found that the will purports to dispose of such property.
    3. The intent of the testator, the guide in the construction of a will, is to be gathered from a consideration of the entire instrument, and where any part of a will is ambiguous, oral proof may be heard of the circumstances of the testator at the time of the making of the will, of his estate, and of the objects of his bounty. But where a clause of a will, taken in connection with the whole, is not of doubtful import, and the words of the will are applicable to any subject, they are to be applied accordingly, and the intent of the testator must be derived from the language he has used. In such case, parol evidence cannot be admitted to contradict, add to, or explain the contents of the will.
    4, If it be charged that the provision involves a false description, and that there is nothing for the provision, giving to the language its ordinary meaning, to operate upon, the burden of establishing that fact is upon the party alleging it.
    5. The general rule is that when a will assumes to dispose of property not owned by the testator, but belonging to another person for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision made for him in the will. But the language expressive of the intent to dispose of the property of another must be unequivocal. If the provision, taken in connection with the entire instrument, will reasonably admit a construction not involving such disposition that construction must prevail, and no necessity for an election in such case will arise. A fortiori will no election be required where the language of the will clearly excludes the purpose to dispose of the property of another.
    (Decided January 26, 1898.)
    Error to the Circuit Court of Montgomery county.
    The controversy had its origin in the court of common pleas, by the filing of a petition by John P. Charch as executor of John S. Charch, deceased, against Emma B. Charch, Kate Brendel, Nettie Bonner, Minnie Charch and John P. Charch, in which it was averred in substance, that John S. Charch died testate in the summer of 1891, and his will and codicil thereto were thereafter probated, and plaintiff appointed executor; that he left Emma B. Charch, widow, and the other defendants, his children, all of full age; that during his life John S. Charch united with an order called the Legion of Honor, which order created a fund for the protection and benefit of families or mem-, bers thereof, the family or such, or any of them as the member directs, to receive, upon his decease not to exceed $3,000; that when said Charch became a member he directed that in the certificate issued to him, his wife Emma B., should receive the amount payable at his decease, and that after his decease, in the fall of 1891, Emma B. received that amount from the order, no other direction having been given the said order. Then follow like averments respecting membership, etc., in Lodge No. 48, of an association known as the Ancient Order of United Workmen ; the issue of a certificate also payable to Emma B., which was never changed, and the receipt by her, about January 1, 1892, of $2,000 from the association thereon. The petition further stated that the defendants other than Emma B. and John P., claim that the testator, at the time of making the codicil referred to, made an agreement with Emma B., whereby she was to receive a further sum by will, and she in turn was to pay over the amounts she would derive from the aforesaid insurance; that in the codicil the testator bequeathed to her an additional sum of one thousand dollars; that the will and codicil are still in force; that she has accepted under the same, but refuses to pay over the insurance money; that if Emma B. is liable for the return of the money, the amount due is $5,000, with interest, etc., for which judgment is prayed.
    Emma B. Charch answered, asserting her rightful claim to the insurance money, and denying the making of the contract alleged; also setting up the provisions of the will in her favor in these words: “ That the said will provides for the payment to her, during her life, of the sum of $100 per month, so long- as her two daughters, Anna M. Charch and Minnie Charch, remain unmarried, and after their marriage the sum of $70 per month and also secures to her the use of the residence, No. 348 South Main Street, Dayton, Ohio, during her natural life, free of taxes, assessments, and expenses of repairs ; and the furniture contained in said house, and a horse, harness and carriage was devised to her absolutely.” She also averred that the estate was of the value of at least $80,000, and that the provisions under the will which she accepted were much less than she would have been entitled to under the law. She further averred that during her married life she inherited from her father one thousand dollars ; that her husband took charge of it and purchased a piece of land which conveyed to a son-in-law, and that at the time of the making of the codicil she requested him to provide for the payment to her of that sum, which he did by the bequest of one thousand dollars, and that sum was bequeathed for that purpose and no other.
    Kate D. Brendel and Nettie Bonner answered, denying, for lack of information, the averments of the petition as to the certificates providing that Emma B. should receive the amounts named therein; also denied that the widow received the money from the companies, and averred that it was collected by the executor and improperly paid over by him to her. And, by cross-petition, set up that the dues and assessments in both orders were paid by John S. Charch personally; that the widow had no vested right therein; that the sum to be paid by each order upon the death of John S. Charch were subject to his disposition, either by assignment or by will; that by his last will said testator directed that his said executor should collect the insurance upon his life (intending to include and dispose of the insurance in the petition mentioned), and that he should distribute the proceeds of the same in accordance with, the terms of the will and codicil; that this intent was made known to Emma B. at the time of the execution of the codicil, 'and that she then expressed her approval of and satisfaction with the same, and subsequently, after the probate of the will and codicil, elected to take under the same, and has since received the benefit thereby given; that they (these defendants) are legatees and devisees under the will, and that as such there is due to each of them a balance of $2,000, and interest; that the same should properly be paid out of the proceeds of the insurance on the life of decedent, including that improperly paid to said Emma B., and they therefore join in the prayer of the petition for judgment.
    To this pleading Emma B. replied, denying the new matter.
    The common pleas, upon trial, found the issues for Emma B. Charch, and rendered judgment for her. This judgment was reversed by the circuit court. Its finding is: “1st. It was manifest from the will and codicil of said John S. Charch, testator, that he intended to, and did, dispose of all the insurance on his life, amounting to the sum of sixteen thousand, five hundred dollars ($16,500), without regard to the beneficiary stated in the policy. 2nd. That the said widow, Emma B. 'Charch, elected to take under will of her husband, and continues to assert her right under the said will, and that if she demanded the insurance money aforesaid, which is bequeathed to other party than herself, she acts in contravention of said will. 3rd. That having elected to take under the said will, and continuing to assert her right to all the benefits thereby conferred, she is estopped to make any claim to the insurance money covered by the
    
      bequest in the will and codicil, and that she must, therefore, return the said sum of five thousand dollars so received by her, with interest.” Then follows a final judgment against Mrs. Charch for five thousand dollars, interest and costs. She asks a reversal of this judgment.
    Gotschall, Brown & Crawford, for plaintiff in error.
    The fundamental principle is that the naming of the beneficiary in the certificate is an act testamentary in its character and the beneficiary has a vested right in the policy and its proceeds, and the certificate could not be changed without the consent of the beneficiary and in pursuance of the bylaws and regulations of the Association. Bacon, sections 291-311-396.
    We assert that John S. Charch, testator, being a member for years of these organizations, and having been an officer of the local councils and orders, and also of the State Grand Councils and Orders, was perfectly familiar with the manner of changing’ the beneficiary, if he desired, and having- refused to do this, he had no power by will to dispose of this money due and payable in the certificate at his death to his wife, Emma B. Charch. Am. Leg. of Honor v. Perry, 140 Mass., 580.
    The legal representatives of the insured have no claim upon the money, and cannot maintain an action therefor, if it is expressed for the benefit of some one else. Harley v. Heist, 86 Ind., 196; Holland v. Taylor, 111 Ind., 121.
    We apprehend the general rule to be that a policy and the money to become due under it, belong the moment it is issued to the person or persons named in it as beneficiary or beneficiaries, and that there is no power in the person procuring the insurance, by any act of his, by deed or will, to transfer to any other person the interest of the person named. Pingrey v. Nat'I Life Ins. Co., 144 Mass., 374; Bliss 2nd ed., section 318; Wilburn v. Wilburn, 83 Ind., 55, and authorities cited.
    The by-laws of the American Legion of Honor and also of the American Order of United Workmen each provide as to the manner in which the name of the beneficiary may he changed, and unless they are followed, the last will of a member has no force as a change of designation. Daniels v. Pratt, 143 Mass., 216.
    This authority is binding for the reason that the American Legion of Honor is organized under the laws of Massachusetts, Public Statutes, Mass. Oh., 115, section 8; Statutes 1882, Mass. Ch., 195, section 2; Hellenbarg v. Bnai Brith, 94 N. Y., 580.
    We are not without authority in our own state as to the rights of the wife. The wife as to such policies is to be regarded as a femme sole. Manhattan Life Ins. Co. v. Smith, 44 Ohio St., 156; The Fraternal Nat. Life. Ins. v. Applegate, 7 Ohio St., 292.
    A contract of insurance to pay in case of a member’s death “to himself or assigns,” “to his estate,” “to his executors or administrators,” or to any person, whether a relation or not, who is not of his family or heirs, is against public policy and void. State v. Standard Life Assoc., 38 Ohio St., 281; State v. Moore, 38 Ohio St. 7; State v. Peoples, etc. Assoc., 42 Ohio St., 579; Nat'l Mut. Aid v. Gonser, 43 Ohio St., 1.
    The fact that the premiums have been paid by the husband is not sufficient of itself, to overcome the legal effect of the terms of the contract. Weber, Loper & Co., v, Paxton, 48 Ohio St., 266.
    
      The policy of the A. O. U. W. was issued under the laws of Ohio. It is an Ohio body and is governed by section 3630<?, Revised Statutes. The American Legion of Honor can do and does business in this state under section 3630c, Revised Statutes.
    Hence we claim that John S. Charch named his wife, Emma B. Charch, as benificiary in the two certificates under consideration, he had no power to change the same other than in accordance with the by-laws and regulations of the several orders. Bacon, sections 291, 311, 396.
    When a benefit society has prescribed by bylaws the forms for changing the beneficiary’s name in the certificate issued to members, that form must be pursued, otherwise no. change can take place.
    As to money payable under the benefit certificates of the American Legion of Honor and Ancient Order of United Workmen, and the power of disposal by will, we would call attention.to case of Arthur et al. v. Odd Fellows’ Beneficial Association et al., 29 Ohio St., 557.
    The provision in the will is expressly declared to be “inlieu of dower.” Story’s Equity, section 1090.
    To make an election binding two things must occur : 1st. There must be intention to elect. 2d. It must be shown that the party making the election was fully advised as to his or her legal or equitable rights. Huston v. Cone, 24 Ohio St., 22; Pomeroy’s Eq. Ju., section 472.
    It is only as between the right to be endowed and the right under her husband’s will, that the statute requires the widow to make an election. There is no election required, under the statute, as between the provisions of the will and any other right of the widow. Bowen v. Bowen, 34 Ohio St., 164; Thompson v. Thompson, 6 Ohio St., 481; section 5963, Revised Statutes.
    It is universal law that wills shall receive a liberal construction. 'The intention of the testator must of course be ascertained from the language of the instrument, as applied to the subject-matter and the surrounding circumstances. Moore v. Beckwith, 14 Ohio St., 132; Brasher v. Marsh, 15 Ohio St., 108; Starling v. Price, 16 Ohio St., 32.
    
      Young & Young, McMahon & McMahon and Gunckel, Rowe & Shuey, for defendants in error.
    It was immaterial whether or not Emma B. Charch had agreed to turn over to the estate all the insurance in which she was interested, at the time when the codicil was made.
    And it was equally immaterial whether or not, independently of the will and her election to take under it, Emma B. Charch would have been entitled as beneficiary to the proceeds of the .insurance in controversy.
    When it appeared that the willand codicil undertook to dispose of all the insurance on the life of John S. Charch, and that the plaintiff had taken-under this will and codicil, and had enjoyed, and was still continuing to enjoy, all the rights and benefits they conferred, it was plain that, without regard to any facts which might still remain in controversy, her right to any part of the insurance had ceased, and that the plaintiff below was entitled to judgment.
    This is so under what is known as the “Doctrine of Election,” the principle of which may be found in 2 Jarman on Wills, Chap. 14 pp. 1 to 43 inclusive, and notes, 6 Encycl. of Law, p. 251; Pomeroy’s Eq. Jur., section 470; 2 Story’s Eq. Jur., section 1075, Vol. 1; Sigmon v. Hawn, 87 N. Car., 450; Whistler v. Webster, 2 Ves. Jr., pp. 371, 372; Jeremy’s Eq., p. 533; 2 Herman on Estoppel and Res. J., sections 619, 1028 et seq; White v. Brockaw 14 Ohio St., 339; Jennings v. Jennings, 21 Ohio St., 56; Huston v. Cone, 24 Ohio St., 11; Hibbs v. Insurance Co., 40 Ohio St., 543.
   Spear, J.

It is established, either by concession or by evidence undisputed, that Emma B. Chareh and the testator, John S. Chareh, were married in the year 1873, and that she continued to live with him as his wife until his decease, June 1, 1891; that during his lifetime he became a member of the two orders named in the pleadings, the Legion of Honor, a Massachusetts association doing business in this state, and the Ancient Order of United Workmen, a domestic association; that he was a charter member of the latter order,. and held the office of treasurer therein from its formation until within about a year of his decease; that a benefit certificate was issued to said Chareh by each of the orders, payable at his death to his wife Emma B. Chareh, one for $3,000,and the other for $2,000, the proceeds of which certificates form the subject of the present controversy; that these certificates evidenced the contracts with the orders for payment of insurance upon the death of John S. Chareh, and that, according to the rules and regulations of the orders, no change could be made as to the person of the beneficiary except by a surrender of the certificate and the issuance of another in its place to another beneficiary, and that no such change was ever made during the life of John S. Charch, but the beneficiary named in the original certificates remained the same; that the testator became a member of other associations and companies, and procured from them other certificates and policies upon his life; all which were in force at the time of his decease, amounting in the aggregate to the sum of $16,500; that on June 7, 1890, John S. Charch made bis last will in which he made provision for Emma B. Charch, in lieu of dower and all statutory provisions and allowances,” as stated in her answer, giving also to his four daughters, Kate D. Brendel, Nettie Bonner, Anna M. Charch and Minnie Charch, each five thousand dollars, to his son, John P. Charch, a business property in Dayton, in fee, and certain rents and income from other property, and providing farther, that at the death of the wife, or before with her consent, the executor should sell all the residue, real and personal, and divide the proceeds equally among his four daughters. The son was made executor without bond. May 21, 1801, he executed a codicil thereto the provisions of which are as follows:

“First — I hereby revoke and declare to be null and void, so much of item 1, of my last will and testament, as relates to my daughters, Anna Charch and Minnie Charch.

“Second — I hereby, give, devise and bequeath to mydaughters, Anna Charch and Minnie Charch, the land recently purchased by me and situated on the north side of the Eaton pike, west of the city of Dayton, and containing 12.98 acres in fee simple, and free of all incumbrance to each the undivided one-half.

“ Third — I direct that my executor collect and realize on my life insurance policies, which I hold upon my life, and distribute the proceeds in accordance with the terms of my will and codicil, and I further direct said executor to pay off any and all incumbrance which may be a lien on the real estate on the Eaton pike, west of Dayton, out of the proceeds so by him realized.

“Fourth — I further give and bequeath, to my widow, Emma B. Chareh, one thousand dollars, which shall be in addition to the other provisions contained in my will, and to be paid by my executor.

u Fifth — Y give, devise and bequeath to my daughter, Nettie Bonner, the lots on the corner of Jay and Wyoming- streets, in the city of Dayton, to her heirs and assigns forever.”

June 1, 1891, John S. Chareh, deceased. June 8, following, the, will and codicil were probated, and, on the same day, the widow appeared in the pro-, bate court and elected “ to take and accept of the provisions made for me in said last will and testament and codicil, in lieu of my dower interest and distributive share of the personal estate.” The allegations of the answer that the estate was of the value of at least $80,000, and the provisions for the widow under the will and codicil were less than that to which she would have been entitled under the law, are not denied.

Evidence was introduced by parties opposed to Mrs. Chareh of the tenor following: At the time the codicil was executed the testator was dangerously ill with heart disease, and the wife and all the members of the family regarded his condition as critical. There were present at the time, Mrs. Chareh, John P. Chareh, the son, and one Carl Baumann, the latter of whom drew the codicil. The matter was talked over by father and son before Baumann was called in, and at the request of the father, the son produced from a desk in the room a box containing the will and- other papers. At the request of the father, the son read to him the will. The father explained that he wanted to change the first item as to Anna and Minnie, and give them land instead. The mortgage on the land, about $4,000, he wanted paid, so that they would receive it clear. Among the papers were certain insurance policies and certificates on the life of the father. At his request the son figured them up and told his father they amounted to $16,500. He asked his father,then, “wherethis money was to come from, and he said it was to come off these insurance policies.” It was mentioned that the executor was'to collect the insurance money, and the iand was to be given to the girls, free of all incumbrance. The father asked the son to draw a codicil, but he declined, wanting his father to wait until morning and call in Judge Elliott; or some other lawyer, but the father, expressing a fea,r that he might not live until morning, refused to delay, and said Baumann could draw it. Mrs. Charch kept quiet and said nothing until it was arranged that Baumann (who was in another room) should be called in to write the codicil, and then she said she wanted one thousand dollars in lieu of the land her husband had bought with her money, which he consented to give her.' After Baumann came in she said something about his giving the girls more than he had, or “you haven’t got money enough to pay all this, ” to which he replied that he thought he had, and explained that he intended Anna and Minnie to have the land instead of the five thousand dollars each. In one part of his testimony the son puts it this way: He stated how he wanted this insurance money distributed, and she asked him: “Papa, what do I get?” or something to that effect. “Why, ” he said, “I provided for you.” She said: “I would like to have a thousand dollars that you had to buy this land,” and he says: “Is there enough left?” I says, “Yes, there will be enough left.” The outline of what was wanted was given to Baumann, and he wrote the codicil, which was then read aloud and duly executed. It is difficult to determine exactly what Mrs. Charch did say, as the two witnesses are somewhat at variance, and the principal one, who undertakes to give it several times, fails to state it twice alike.

The foregoing- is a brief epitome of the testimony as to what took place at the time of the drawing of the codicil. Necessarily many statements and incidents are omitted here, but the above, it is believed, contains all that makes against Mrs. Charch. She did not participate in the making of the codicil, by either act or word, save in the making of the bequest as to the thousand dollars, and the suggestion of doubt of there being money enough to pay, whatever that may have been. It was clearly shown by the testimony of the son, that the thousand dollars referred to was money which Mrs. Charch had received from her father’s estate and had loaned to her husband who used it in the purchase of land which he had conveyed to a son-in-law. It does not appear that Mrs. Charch saw any of the insurance papers, or was apprised of their contents. Nothing at all was said about any of the insurance certificates or policies being those which had been made to her, nor was she asked to give up any interest of that kind, nor did she, by word or act, directly attempt to do so, and the claim that she then understood that the policies to be used by the executor in paying legacies, etc., provided by the will and codicil included any which were payable to her, rests entirely on inference. She was present. She may have heard all that was said, and she may not. She did nothing, and said nothing by way of assent or dissent with respect to the use of the insurance money. She may have understood that her certificates were to be included, and she may not.

Of course if a contract is to be found it must rest upon what occurred at the time the codicil was drawn. Statements and acts afterward might throw light on what then took place, hut that which makes for as well as that which makes against Mrs. Charch, should be considered. Conversations about the time of the probating of the will are testified to which, if believed, tend to show that Mrs. Charch then consented that the proceeds of her certificates might go into the estate, and give color to the claim that she had so understood the matter all along, and certain acts shortly after that are consistent with that conclusion, but, on the other hand, other acts and claims made by her about the same time, or shortly after, are wholly at variance with it. Taken together, they evidence a woman somewhat broken, and one who did not well know her own mind. But our conclusion upon the controlling facts of the case renders it unnecessary to dwell upon this feature of it.

The evidence was introduced for two purposes : (1) To establish the alleged contract of Mrs. Charch with her husband to give up her insurance certificates, or the proceeds, and (2) to maintain the claim that it was the intent of the testator to include the certificates which belonged to her among those which the executor was to collect and distribute in accordance with the will and codicil, and that she, at the time of the execution of the codicil, understood that intent and assented to it, and that her election afterward to take under the will and codicil instead of under the law, and the receipt by her of the benefits thus granted to her preclude her from now claiming the benefit of the insurance certificates. If competent for either purpose the evidence was properly received.

First, as to the contract. To sustain it two elements are necessary: a meeting of the minds, and valid consideration. It will be noted that. the evidence shows no discussion upon the night in question respecting the will so far as Mrs. Charch was concerned, and no suggestion that the provisions therein made for her benefit were to be disturbed. It will be farther noted that the only benefit she was to derive from the codicil was the legacy of one thousand dollars. The proposition; then, is, that she, knowingly and intentionally, agreed to surrender the sum of five thousand dollars already secured to her by the certificates and take in return the one thousand dollars provided by the codicil, a thing so inherently improbable that very strong and direct proof of the promise would be needed to justify a holding that she knowingly assented to the proposition. The alleged promise on her part should be clearly shown. It may, however, be said that the evidence tends to show that she assented to such an arrangement, and, while we think that in a case like this one the fact of the promise should be clearly established, or the contention ought to fail, still, as this presents aquestion of preponderance of evidence, this court would not be disposed to disturb the holding of the court below upon such a difference of opinion. Waiving this, there remains the matter of consideration for the promise. What was it in this case? We scan the record in vain to find one that is'substantial, or that will stand in law. The benefit to be derived for this surrender, if any there were, was the thousand dollar legacy. But that was simply a provision for the payment by the husband of a debt he owed her, one which, had he made no provision for paying", she could have collected against his estate, and that without in the least affecting any other benefit which accrued to her by the will. He was, then, paying an undisputed debt, not making a gift, nor giving a legacy in lieu of any other benefit. The consideration for the legacy was the obligation arising from the loan of the money by the wife'; she was in this way simply getting back her own. Under such circumstances the agreement to pay the debt by a legacy can afford no consideration for any other promise by the wife, if one were made ; and it results that the claimed contract wholly fails.

Second, as to the intent of the testator. The proposition is to establish that intent by oral testimony. Can it be done? The provision in question is : “I direct that my executor collect and realize on all my life insurance policies, which I hold on my life, and distribute the proceeds in accordance with the terms of my will and codicil,” etc. The subject-matter is Ms policies — my policies, is the phrase. The words following, “ which I hold ” would, in common parlance, signify manual possession, but the expression is subordinate to that which precedes, and, taken in connection with it, implies possession of that which was his. Nor is the result different if a technical legal meaning be given the word “hold. ” In deeds it signifies tenure. But tenure cannot exist in favor of one respecting that in which he has no property interest. If the question were as to a devise of land in this form : “all my land of which I have possession,” would any intelligent mind assume that the will evinced a purpose to convey land of another which might at the time happen to be in the possession of the testator ? Surely not. The canons of construction will not permit a provision clearly disposing only of property in the possession of the testator of which he is the owner to be held to include property in his possession which belongs to another. It follows that clause three of the codicil means that what insurance policies were his the testator disposed of. Those which were not his he did not dispose of, nor attempt to. By the undisputed facts it is established that the certificates in question were issued to the wife and so remained. Under the law, her interest in them, while not a vested one during the husband’s life, was such as he could not change by testamentary disposition. When the by-laws provide, as those of these two orders do, a method by which the beneficiary may be changed that method must be pursued, and, where-no change is thus made, the company’s promise to pay runs only to the person named in the certificate. This point is ruled for us by Arthur v. Odd Fellows' Association, 29 Ohio St., 557. See also, as bearing upon the subject: Weisert v. Muehl, 81 Ky., 336; Block v. Association, 52 Ark., 201; De Silva v. Supreme Council, 109 Cal., 373; Bacon on Beneficial Societies, section 307; Holland v. Taylor, 111 Ind., 121; Martin v. Stubbings, 126 Ill., 387; Association v. Bunch, 109 Mo., 560; Masonic Association v. Jones, 154 Penna. State, 107. Nor is the fact that the insured paid the dues or assessments sufficient to overcome the legal effect of the terms of the contract. Weber v. Paxton, 48 Ohio St., 266. The by-laws of the orders forbid any other conclusion so long as the certificates remain in force, and this doubtless was known to the testator since he had been for years an officer in one of the orders, and presumably familiar with the rules of both. It follows that, giving effect to the terms of the codicil, the certificates of Mrs. Charch were not disposed of.

But, under favor of the rule that the true intent of the testator is to be the guiding star in the interpretation of a will, it is proposed to extend the meaning of the words used in clause three so as to make them embrace insurance policies not his, and this by oral testimony. It cannot be done unless it be first shown thatthereis a false description, that is, that there are no policies or certificates on which the provision can operate. The rule is so well established that parol evidence cannot be permitted, either to contradict, add to or explain the contents of a written will, that authorities are hardly needed in its support. We content ourselves with citing’ 1 Jarman on Wills, 6th Ed., p. 412; Painter v. Painter, 18 Ohio Rep., 247; Collins v. Hope, 20 Ohio Rep., 493, and Wigram on Wills, section 159, from which latter authority we quote : “If the words of the will are applicable to any subject, the court is inflexible in applying them accordingly.” It therefore devolved upon those attacking Mrs. Charch’s right to the certificate to show that, unless these should be included there would be nothing for the provision, as hereinbefore construed, to operate upon. There is no attempt affirmatively to show this, and the presumption from the whole record is to the contrary.

Our conclusion upon the whole case is that the widow was not required to elect between the provisions of the will and codicil and the benefit secured by these certificates. As held in Huston v. Cone, 24 Ohio St., 11, “where a will assumes to give to one of its beneficiaries property belonging to another person for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision-made for him in the will. ” But it is also well settled that the language of the will expressive of the intent to give another’s property must be unequivocal. If the provision in question, taken in connection with the whole will, will reasonably admit a construction not involving a disposition of such property, that construction must prevail. In order to create the necessity for an election, there must appear upon the face of the will itself a clear, unmistakable intention on the part of the testator to dispose of property which is in fact not his own. The language must be so clear as to leave no doubt as to the testator’s design; the necessity for an election cannot arise from an uncertain or dubious interpretation of the will. We are not, however, required to look farther than the third clause of the codicil, for no other portion helps to explain that. Pomeroy’s Equity, sections 472-3; 1 Jarman on Wills, 6th Ed., 460; 2 Story’s Eq. Jur., section 1086. The case at bar is dissimiliar from Hibbs v. Ins. Co., 40 Ohio St., 543, relied upon in argument, in this important particular. There the description of the property of the wife was clearly defined, and it was clearly included in the devise; here it is not only not clearly included, but is, as we think, clearly excluded by the terms of the codicil.

It results that the controlling considerations in the case were the legal effect of the insurance certificates standing in the name of Mrs. Charch, and clause three of the codicil, as properly construed. The material facts being conceded it remained only to apply the correct rule of law. And the law being how held in her favor, Mrs. Charch is, under the ruling in Minnear v. Holloway, 56 Ohio St., 148, entitled to judgment. The circuit court, therefore, did not err in rendering final judgment, but as we think and hold, did err in giving- judgment for the wrong party. The judgment of the circuit court will be reversed and that of the common pleas affirmed.

Reversed.  