
    Moore, Admr., v. Blauser, Admr.
    
      Wills — Construction—Language plain and meaning obvious— Not qualified or controlled by conjecture a/rising from extraneous facts — Words given ordinary use and meaning, when — Use and control of personalty devised without right to corptis.
    
    1. In interpretation and construction of language used in will, when language is plain and meaning obvious, courts are without authority to qualify or control such language in any way by conjecture or doubt arising from extraneous facts.
    2. 'Words which are used in will are to be construed in accordance with their ordinary use and meaning, unless it appears from context or other provisions in will that testator has used them in different sense.
    3. Under will conveying to wife control, use, possession, proceeds and income from all testator’s property, and providing that wife may sell portion of realty if she became an invalid and income was insufficient for her support, testator intended to convey only use and control of personalty with no right to corpus.
    (Decided October 27, 1926.)
    Error: Court of Appeals for Licking county.
    
      Messrs. Fitzgibbon, Montgomery & Black, for plaintiff in error.
    
      Messrs. Flory & Flory and Mr. G. G. L. Tearick, for defendant in error.
   Houck, P. J.

The plaintiff in error here was the defendant below. The defendant in error here, as plaintiff below, recovered a judgment against the defendant, in the sum of $4,379.35, as the amount due from the estate of Mary A. Beem, deceased, to the estate of Alonzo Beem, deceased. The cause was submitted to the trial judge, a jury having been waived.

This case was ably presented by counsel in oral argument and by written brief. While a number of errors are urged by counsel for plaintiff in error for a reversal of the judgment in the common pleas court, assignment of error No. 1 really covers all of the claims made, to-wit, “Said judgment and finding was in favor of defendant in error when it should have been for the plaintiff in error.”

The question whether there is error in this case prejudicial to the rights of plaintiff in error must be determined from an examination of the record before us for review. The real issue here must be determined, as conceded by all the counsel in the case, from a proper and correct interpretation and construction of items 3 and 4 of the last will and testament of Alonzo Beem, deceased, which items read :

“Item 3. I give, devise and bequeath to my said wife, Mary Beem, the control, use, possession, proceeds and income from all the balance of my property, real, personal and mixed of every description that I may die seized of, wherever situated, for and during her natural life, and should my said wife, at any time during her lifetime become an invalid and helpless, and the aforesaid use, income and proceeds from my said property should be insufficient for her comfortable support, then in that event, it is my will that my said wife, Mary Beem, may sell any such portion of my real estate of which I die seized, that may be necessary for her comfortable support and apply the proceeds to her said support, and I hereby authorize my said wife, Mary Beem, to execute good and sufficient deeds of conveyance to the purchaser or purchasers thereof, of any such real estate that she may find necessary to sell for her said support.
“Item 4. After the death of my said wife, Mary Beem, having no children of my own, nor any adopted children, all the remainder and residue of my said property of whatever nature the same may be, after my said wife shall have received her said support therefrom as heretofore provided and the aforesaid devise to her absolutely as heretofore provided in this my will, I give, devise and bequeath as follows.”

In the interpretation and construction of the language used in a will, we think the rule is well settled that, when the language is plain, and its meaning obvious, courts are without authority or power and have no right to qualify or control such language in any way by conjecture or doubt arising from extraneous facts.

Tbe outside facts wben applied to tbe present case do not aid tbe court in its interpretation of tbe language in tbe will sought to be construed. Tbe guiding star for tbe interpretation of tbe words and sentences used in the will now under consideration may well be stated as follows: Words wbicb are used in a will are to be construed in accordance with their ordinary use and meaning, unless it appears from the context and other provisions of tbe will that testator has used them in a different sense.

Counsel for plaintiff in error insist that, under Items 3 and 4 of tbe last will and testament of Alonzo Beem, bis widow, Mary A. Beem, was authorized and bad full and complete authority, not only to use, but to consume, tbe entire personal estate of Alonzo Beem.

Opposing counsel just as strongly urge and insist that Mary A. Beem bad only tbe use and income of tbe personal estate, without any authority, right, or power, under tbe will of her husband, Alonzo Beem, to consume any part of tbe corpus of such personal estate.

Hence this lawsuit requiring this court to construe tbe will of Alonzo Beem.

Tbe words and language to be construed, and wbicb must and will determine this controversy, so far as tbe court is concerned, are as follows: “Tbe control, use, possession, proceeds and income from all tbe balance of my property, real, personal and mixed. ’ ’

Under and by force of tbe words and language quoted, did Mary A. Beem have tbe right, in law, to consume the corpus of tbe personal property?

The language here used seems to be clear, definite, and certain. It does not occur to us that it is in any way ambiguous or uncertain. The writer of the will, judging from the words and language employed, was educated and cultured, and there is no doubt, as we view it, as to the proper construction to be placed upon the words and language in dispute.

We find and hold the intention of the testator to be under, the terms and provisions of his will that his widow, Mary A. Beem, should have only the use and control of his personal estate, with no right to the corpus.

Alonzo Beem, by use of the following words, provided in clear and plain language for Mary A. Beem:

“And should my wife, at any time during her lifetime become an invalid and helpless, and the aforesaid use, income and proceeds from my said property should be insufficient for her comfortable support, then in that event, it is my will that my said wife, Mary Beem, may sell any such portion of my real estate of which I die seized, that may be necessary for her comfortable support and apply the proceeds to her said support.”

There is no evidence in the record that the contingency arose that would authorize Mary A. Beem to sell any land for her support. However, the language just quoted clearly indicates an intention on the part of the testator that Mary A. Beem should have the control, use, possession, and income of his personal estate, but not the corpus.

This case has been given our careful and most laborious attention. We have examined the authorities cited in the briefs of counsel, together with others obtained by personal research. This was done to ascertain the construction our courts have placed upon words similar to those used in the will of Alonzo Beem, which were determinative of the questions presented for decision in those courts.

We are of the unanimous opinion that the judgment of the common pleas court is right, and should be affirmed.

Judgment affirmed.

Shields and Lemert, JJ., concur.  