
    Wagner et al. v. Schrembs et al.
    
      (Decided November 16, 1932.)
    
      Messrs, Rodgers & Wendling, for plaintiffs.
    
      Messrs. Blake & Blake, Mr. Eugene Quigley, Mr. Paul J. Qnam and Messrs. Fisher, Leahy & Weintraub, for defendants.
   Lemert, J.

In the common pleas court of Stark county this was an action for the construction of the will of John N. Bast, who died in Canton, Stark county, Ohio, on June 27, 1930, and the action was brought by the executors nominated by the decedent in his will, who were duly qualified after the issuance of letters testamentary on July 16, 1930, by the probate court of Stark county. Said will was executed on July 19, 1929, less than one year prior to the death of the testator. In addition to oral arguments, voluminous and able briefs have been submitted by all parties interested.

In the court below, the executors asked for a construction of items 2, 3, 4, 5, 9,10,12, and 13 of the will. Without entering into a long and tedious detail of the issues involved for our determination, suffice it to say that bequests contained in items 2, 3, 4, 5, and 10, the same being benevolent, religious, educational, or charitable, are invalidated by the statute; items 6, 7, 8, and 9 are specific bequests to the friends, relatives, and next of kin of the testator; item 11 conveys the balance and remainder of decedent’s estate, both’personal and real, excepting, however, decedent’s equity, interest, and share in a certain so-called Bast Block, located in Canton, Ohio, and contains a further devise as to the lease thereon; item 12 makes provision for the property known as the Bast Block, at the termination of the 99-year lease thereon, which lease terminates in 2014, wherein testator devises and bequeaths his equity and interest therein, one-half to his three grandchildren, their heirs and assigns, to be equally divided among them, share and share alike, and one-half to all of his nephews and nieces, their heirs and assigns, to be equally divided among them, share and share alike. Item 13 provides as follows:

“In the event that the available assets of my estate, without reducing the principal thereof, are not sufficient to pay any and all of the bequests made in the foregoing items, payments are to be delayed until my estate will have produced sufficient income to meet all of said grants, devises and bequests without reduction of the principal.”

Item 14 provides for the designation of his executors.

We note, taking the will as a whole, that it amounts in substance to the following: There are numerous specific bequests to charity, institutions, and individuals. Outside of the formal items, all items except items 11,12, and 13 are specific bequests to institutions, charities and individuals. Item 12 is a devise and bequest at the termination of a 99-year lease, terminaling in 2014, to three grandchildren and to nieces and nephews, half and half to each class. Item 11 is a general residuary clause, excepting therefrom the equity, interest, and share in the Bast Block and lease devised in item 12. This is the sum and substance of the will for which construction is asked.

A number of questions are raised by the various interested parties:

(1) Which bequests or devises are for charitable, religious or educational purposes and void under the statute by reason of the fact that death occurred within one year?

(2) To whom do the bequests and devises, which lapse by reason of being charitable bequests or otherwise, go? Do they go into the general residuary clause under the will, or do they go as intestate property to the heirs and next of kin?

(3) Is item 9 of the will providing for the support and education of William, Francis, and Mary Hultgen void for indefiniteness and uncertainty?

(4) What right, estate, or interest do the legatees and devisees under item 12 take, and what right, estate, or interest do the legatees and devisees take under the general residuary clause, item 11, and does any part of the estate of the testator descend intestate?

(5) Does item 11 or item 12 or either of them violate any principle of law?

In order to construe these items, we believe the cardinal and fundamental principles of will construction to be:

The sole end in construing the will is to ascertain the testator’s intention.

The testator’s intention must be ascertained from the language used in the will.

The language the testator used in the will is construed in the light of the circumstances under which he used it.

Every part of the will is construed from its four corners.

Wills are liberally construed in order to give effect to the testator’s intentions.

The contention of the grandchildren seems to be that under items 11 and 12 an executory devise, as claimed, commences in 2014, that an executory devise as distinguished from a remainder rests upon no vested estate, and that, by reason thereof, the vested estate, not being disposed of by the will, goes intestate to the heirs at law.

It is to be observed that during the lifetime of the testator he made and entered into a so-called 99-year lease of the Bast Block, giving, granting, selling, and conveying to the lessees therein an estate for years. Upon the' execution and delivery of this lease, we believe that the lessee had an immediate estate for years, and John Bast, the lessor, had the reversionary interest in said estate; that, in addition thereto John Bast had an estate for years in the ground rents and rentals reserved in the lease, and that reversionary interest for his estate in the ground rents and rentals could be sold, devised, or descend as intestate property in the same manner as other property, real, personal, or mixed.

Whether John Bast, at the time of the making of the will, and at the time of his death, was or was not seized in fee simple of the Bast Block, we are not passing upon, for the reason that we are of the opinion that we have not, and the court below had not, the right so to do. Taking this will as a whole, we are of the opinion that it clearly shows that prior to 2014 it was the intention of the testator that all bequests which could be validly paid should be paid out of the rents and issues of his property, and that the balance and remainder of his estate should go to the nephews and nieces, and that after the year 2014 the nephews and nieces would share equally with the grandchildren in the estate. It seems to us that this construction is both equitable and fair, as the same relates to grandchildren and nieces and nephews. By the very terms thereof, prior to 2014 the grandchildren are given specific bequests and annuities for their support and education, and the nieces and nephews are given the residue and remainder of the estate subject to the payment of all the bequests.

The briefs submitted in this case bring to us directly the proposition as to where the title to the Bast Block vests prior to 2014, and raises the further question whether or not the devise comes by reversion or remainder, and both in oral argument and brief it is contended that this court shall fix the fee in this estate. That brings us directly to the question whether or not the court below had the right, and whether this reviewing court has the right, in construing this will, to determine who has the legal estate or the fee in the property devised. It is to be noted in the instant case that the testator, by appropriate language, did not make any of the bequests or legacies a charge on the income of the lease or upon the real estate devised. He did in item 13 provide that the payment of the legacies and bequests should be out of the income of the testator’s estate, specifically directing that the principal of his estate should not be reduced. We are of the opinion that the language so used shows an intent to make a charge upon the income of the 99-year lease so long as it was in effect, and that upon its termination the bequest could not be a charge against the real estate devised.

The law in Ohio is now well settled upon the question as to whether a legacy can be charged against a devise of real estate. A distinction, however, is drawn between a devise specifically and a devise in a general residuary clause. In Knepper v. Knepper, Exr., 103 Ohio St., 529, 134 N. E., 476, the rule was laid down: ‘ ‘ The intention of a testator to charge legacies on real estate specifically devised must clearly appear or be clearly deducible from the language of the will. But it is not necessary that the charge shall be made in express terms or that any particular language be used. The intention to charge will be given effect when it clearly appears from the provisions of the instrument. ’ ’

Under the new Probate Code, Section 10504-66, General Code, the only changes made were that the term “fiduciary” was used instead of “administrators,” etc., and the Code also provided that the action may be brought in the probate court.

It is to be noted that the action to construe a will must be brought by the fiduciary against the legatees and the others asking direction and judgment in matters respecting the trust, estate, or property to be administered. We are of the opinion that this section does not authorize any heir, legatee, creditor, or other party, or even the fiduciary, to ask the court to determine who is the owner of real estate devised; who gets the real estate or how he gets it is no concern of the administrator or executor.

Prior to January 1, 1932, there was no provision in the law whereby an heir or other person could ask a court to make a declaratory judgment advising them who the owner of the real estate might be. The only methods known theretofore to determine such questions were by an action at law to quiet title, partition, etc. Declaratory judgments were not recognized in Ohio generally until the new Probate Code went into effect, when Sections 10505-1 and 10505-2 (114 Ohio Laws, 362) were passed. Section 10505-1, General Code, provides in substance as follows: “The probate court, in matters within its jurisdiction, shall have power to declare rights, titles, interests and other legal relations, whether or not further relief is or could be claimed. Such declaratory judgment or decree may be either affirmative or negative in form and effect, and shall have the effect of a final judgment. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for.”

We note by this statute that jurisdiction is given to the probate court, only, to make declaratory judgment concerning title. The common pleas court, even after the passage of this section, cannot make declaratory judgments of this nature, but is still limited to making-declaratory judgments as it formerly did under the common law. (See explanatory note, Deibel’s Probate Law, Section 607, page 625.)

Explaining the proceedings of the probate committee in the passage of this act, it is stated that for some reason it was not seen fit in Ohio to extend the declaratory judgment law to the common pleas court.

Under Section 10505-2, it will be noted that the probate court may, and the common pleas court may not, either upon the application of the fiduciary, heir or others, declare a judgment respecting the right and title of a person in an estate.

In the case of Bowen v. Bowen, 38 Ohio St., 426, the next of kin brought suit to construe the will, claiming that a residuary clause granting- residue of the property should be null and void, and claiming that as next of kin they were entitled to a distributive share. The court held that, since the executors filed no suit for construction, the proper remedy was a suit by the next of kin under the statute to recover their distributive shares.

We are therefore of the opinion that, this being a suit to construe a will under Section 10857, General Code, brought by the fiduciary in the common pleas court, that court was limited to giving direction and judgment to the fiduciary in matters respecting the administration of Ms trust and estate, and that the common pleas court cannot make a declaratory judgment deciding who is the owner of the fee or any estate therein devised or given by said will, nor who is entitled to the proceeds thereof. Under Sections 10505-1 and 10505-2, we are of the opinion that the probate court only has the power to ascertain the interest of any or all persons in the estate, etc.

In order to make plain and clear our holding on item 9 of the will, we hold that the monthly payment of $50 to each grandchild shall continue for and during the life of the beneficiary, and that the bequest of $25 per month for education and support shall continue only until each grandchild reaches the age of 21 years.

An entry may be drawn in accordance with this opinion.

Decree accordingly.

Sherick, P. J., and Montgomery, J., concur.  