
    Albert Brasher et al. v. William E. Marsh et al.
    A., having lands, and certain real estate in Cincinnati, known as his “ town property,” by bis will, gave his personal estate to his wife; “also,” declared his “wish and desire” that all his real estate be equally divided between his eight children named. By the subsequent provisions, he divided said lands into three parcels of different specified values, giving one to each of his three sons, limiting their right of possession to the times they respectively arrived at age. The town property he directed to be rented, his children to have their proportion of the rents as they severally arrived at age — till then his wife to have them. After her death the town property to be sold, the proceeds, including the amounts given the sons in land, and the advancements charged to his sons-in-law, to be equally divided “among his then living children or their heirs.” Held :
    1. That, the clause expressing tho “ wish and desire” of the testator was dispositive in its nature, and gave a vested interest to all the children.
    2. That the specific devises to the sons were the execution, in part, of the division which the distribution of the proceeds of the town property was to com- . píete.
    3. The words “or their heirs” were designed to provide for the case of such children as might die before the final distribution — not a new class of beneficiaries. “ Heirs ” is used as a word of limitation, and those only can claim under it who derive title through a deceased child.
    Error to the superior court of Cincinnati.
    The controversy in this case is in regard to certain real estate situate at the corner of Main and Columbia, and at the corner of Main and Sixth streets in the city of Cincinnati, and referred to in the will of Frederick Alter, deceased, as his “town property.”
    All parties claim under said will.
    The object of the original petition filed by the plaintiffs, who are now plaintiffs in error, was to obtain an order for the sale of the property, an account of the rents and profits, and a distribution of the proceeds; of which they claimed, by the provisions of said will, to be entitled to two sevenths, as the heirs of Mary Ann and Charlotte, two of the daughters of the testator.
    The defendants in error denied the right of the plaintiffs, and claimed the same 'property through conveyances executed by Mary Ann and Charlotte in their life time, and asked to bo quieted in their title and possession.
    There was a special finding of facts, by the superior court, of which the, following are all that are material:
    Frederick Alter died June 19,1819, leaving a widow, Mary Ann, and eight children, namely — Charlotte, intermarried with James Clark, Catharine, intermarried with Jacob Clark, and William, Charles, John, Mary Ann, Susan, and Harriet. He also left a will, admitted to probate September 10, 1819, a copy of which is referred to as an exhibit and made part of the petition, of which exhibit the following is a copy:
    “ In the name of God, Amen. I, Frederick Alter, of the township of Green, in the county of Hamilton, and State of Ohio, considering the uncertainty of this mortal life, and being of sound and perfect mind and memory — blessed be Almighty God for the same — do make and publish this my last will and testament, in manner and form following, that is to say:
    
      “Mrst, I give and bequeath unto my beloved wife, Ma.ry Ann Alter, all my personal estate, goods and chattels, of what nature soever. I also wish and desire that all my real estate be equally divided between my children, namely, Charlotte, the wife of James Clark; Catharine, the wife of Jacob Clark; William, my son; Charles, my son; and John, my son; Mary Ann, Susan, and Harriet, my younger daughters.
    “1. I give and bequeath to my son William Alter, his heirs and assigns, all that certain piece or parcel of land situated, lying, and being in the township of Green, and county of Hamilton, and State of Ohio, containing one hundred and fourteen acres, be the same more or less, deeded to me by Maxwell Parkenson, bearing date the sixth day of August, in the year of our Lord, one thousand eight hundred and thirteen, valued at thirty dollars per acre, amounting to three thousand four hundred and twenty dollars; also, I give and bequeath to my son Charles Alter, his heirs or assigns, the east half of the south-east quarter of section twenty-one, the second township, and second fractional range of townships, containing eighty acres, more or less, deeded to me by James Findlay, Jacob Burnett, and William H. Harrison, bearing date 2d June, in the year of our Lord, one thousand eight hundred and fifteen; together with twenty-nine acres off the south-west corner of the south-west quarter of section fifteen, same township and range; bounded as follows, viz: beginning at the south-west corner of said section, thence north seventeen chain's, thence east fifteen chains, eighty-four links, to the county road, leading from Millcreek bridge to the state road; thence with said road sixteen degrees south of east, three chains, fifty links ; thence south three degrees, west thirteen chains, fifty links, with said road, to the south boundary of said section; thence west seventeen chains, seventy-five links, to the place of beginning; making, in the whole, one hundred and nine acres, valued at fifteen dollars per acre, amounting to one thousand six hundred and thirty-five dollars. Also, I give and bequeath unto my son John Alter, his heirs or assigns forever, all the south-west quarter of section fifteen, in the second township, second fractional range of townships, deeded to me by Samuel R. Allen and William Woodnut, bearing date the sixth day of January, in the year of our Lord, one thousand eight hundred and seventeen; excepting the twenty-nine acres already given to my son Charles Alter, valued at twenty-three dollars per acre, amounting to three thousand and thirteen dollars; and further, it is my will that the lane or road now laid out by myself, commencing at the county road, and leading through the place given to my son John, and through the place given to my son William, to the state road, shall be kept open for the use of my three sons; but in case it should be thought best hereafter to shut said road, my will is that the same may be done by affixing gates or good bars at each end of said road.
    “ It is, furthermore, my will, that it be understood that I do not wish any of my town property to be sold or disposed of during the life time or wido whood of my beloved wife, or until my youngest daughter, Harriet, becomes of age. But that the property be rented-to the best advantage, and each of my children draw their proportions of the said rent, as they arrive at age, my wife, Mary Ann, to draw the rents until then. After the death of my before named wife, my will is, that my property in town, namely, my property on the corner of Main and Columbia streets, also, my property on the corner of Main and Sixth streets, be disposed of or -sold to the best advantage, the proceeds of which to be equally divided among my then living children, or their heirs, including several sums or amounts of land given to my .three sons, as, also, all money and other property given to my sons-in-law, and charged to them.
    “ It is, also, my will and desire, that each of my sons get possession of the before mentioned lands as they arrive at age, excepting my youngest son John; my will is, that all the land given to him, with all the privileges and appurtenances thereunto belonging, remain and belong to my beloved wife, Mary Ann Alter, during her lifetime or widowhood; but that after her death my son John, to have possession, provided he is of full age and not before; and, lastly, I hereby appoint my trusty and well beloved friend, Adam Moore, executor, together with Mary Ann, my wife, executrix of this, my last will and testament, hereby revoking all other former wills and testaments made by me. In witness whereof, I have here unto set my hand and seal, this tenth day of May, in the year of our Lord 1819.”
    All the children of the testator, except the two married daughters, Charlotte Clark and Catharine Clark, were under age at the time of -his death.
    Harriet, the youngest daughter, attained her majority the 2Sd of June, 1884,
    
      Mary Ann, one of the daughters, after the death of the testator, intermarried with Robert C. Brasher, and died on the 15th December, 1838, leaving plaintiffs, Albert Brasher, Frederick Brasher, and Mary Ann, intermarried with Abraham Sallie, her children.
    John Alter, one of the sons, died intestate and without issue, on the 8th of May, 1838.
    Charlotte Clark, the eldest daughter, died in June, 1844. Her children and grand children, together with the husbands of the married daughters, are the other plaintiffs in the case.
    Mary Ann Alter, the widow, survived Mrs. Brasher, John Alter, and Mrs. Charlotte Clark, and died on the 4th of November, 1844.
    In 1832, Mary Ann Brasher, and Robert C. Brasher, her husband, conveyed to William Alter, by deed of quit claim, all their interest in the “ town property ” described in the will, and all interest in the estate of Frederick Alter, deceased.
    Mrs. Charlotte Clark and James Clark, her husband, by two deeds of warranty, one in 1832, and the other in 1834, conveyed all their interest in the “ town property,” and in the estate of Frederick Alter, deceased, to William Alter.
    The defendants derive their title, through intermediate conveyances, from William Alter, the grantee of Mrs. Brasher and Mrs. Charlotte Clark and their husbands; and from the other children cf Frederick Alter, deceased; all of whom conveyed after they became of age.
    The superior court, upon the facts found, dismissed the petition and granted the defendants the relief prayed for.
    The plaintiffs seek to reverse this judgment — insisting that, upon the facts found, it is contrary to law, a,nd should have been for the plaintiffs instead of the defendants.
    Since the filing of the petition in error it has been discovered that a mistake was made in originally recording the will; and by a proceeding instituted in the probate court of Hamilton county, in that behalf, an order was made that the original will, still on file in that court be “ truly recorded.”
    
      On motion of the defendants, and notice to the plaintiffs, the superior court ordered that the petition, decree, record, and proceedings he amended by making part thereof an authenticated copy of the last record of said will as an exhibit. A certified transcript of these proceedings has Leen filed in this court as a supplement to the transcript filed by the plaintiffs, with their petition in error. The alleged error in the original record of the will consists in substituting the word desire for the word devise, in the second disposing clause of the will, so that in the original record this clause of the will reads : “ I also wish and desire that all my real estate be equally divided,” etc., and in the amended record: “I also wish and devise,” etc., but the court being of opinion that the construction of the will would be the same with the use of either word, and, as a question is made whether the supplementary proceeding is regularly before the court, the case is disposed of upon the original record.
    
      William Johnson and J. L. Miner, for plaintiffs in error.
    
      T. J. Strait, Gr. JB. Hollister, W. Van Hamm, and Kebler, Whitman &; Force, for defendants in error.
   White, J.

The present case has been elaborately argued, and the authorities, collected and examined by counsel, indicate much research. We can not examine, in detail, the various cases, and rules of construction, urged by the respective counsel as applicable to the present case, and, the application of which, it is claimed, would determine the controversy.

It has become a formula, in the construction of wills, that the intention of the testator must govern. This intention must, of course, be ascertained from the language of the instrument, as applied to the subject matter, and the surrounding circumstances.

The rule for construing the language of a will is less rigid than it is in regard to any other instrument. It is not, necessarily, to be viewed technically, and, with strict grammatical accuracy, but sensibly and liberally, in order to give effect to intention. 4 Ohio St. Rep. 351. In whatever language an intended disposition is expressed, if the disposition itself be not unlawful, it must follow the ascertained intent. The value of rules of construction, when confined to their proper office, can not be over estimated. They are to be resorted to as a means to aid in arriving at the intention of the tastator; but, never to be adhered to, when such adherence would thwart the obvious intention as gathered from the whole will.

The same remarks may be made with regard to particular cases. They are to be used as aids in the investigation, and, assuming their intrinsic s’oundness, their just weight will be in proportion to their analogical completeness. Where the essential data do not correspond: — e. g. — the terms of the will, the subject matter, and the material relations and surroundings attending the cases — it will not do to .make one case, unquestioned, the standard for the decision of another. And, while too strongly stated for entire accuracy, yet there is much force in the language' of Justice Wilmot, that:

“ Every case stands upon the evidence of the testator’s intention, arising out of each will. In questions of intention, cases, unless they coincide in words, and every other circumstance, never assist, but perplex, the exposition. A will ifs the picture of a man’s mind; and one may as well look at the picture of one man to know the person of another, as to lool: at the will of one mind to know the mind of another.” Keiley v. Fowler, Wilmot’s Notes and Opinions, 319.

But, to proceed to the will in question :

The first two clauses are disposing and operative clauses. The language is (1) “First, I give and bequeath unto my beloved wife, Mary Ann Alter, all my personal estate, goods and chattels, of what nature soever.” (2) “ I also wish and desire that all my real estate be equally divided between my children, namely, Charlotte, the wife of James Clark; Catharine, the wife of Jacob Clark; William, my son; Charles, my son; and John, my son; Mary Ann, Susan, and Harriet, my younger daughters.”

By the first, all his personal estate is given to his wife alone; and as there was to be neither division, nor a postponement of her enjoyment, no further mention of it was necessary, or is made in the subsequent parts of the will.

By the second, all his real estate is given to his seven children named; but it was to be equally divided. This division was required to give to each an equal amount in value. It might have been left to be effected in the mode provided by law; or, by amicable agreement among the children; or, the testator might himself direct the mode. This, by the subsequent provisions of the will, he did. He designed the sons to have the several tracts of land given to them respectively, and, as these lands were of different values, the “town property” alone remained from which the division could be made equal. To effect this object he directs, that after the death of ■ his wife, it be sold, and the proceeds divided in a manner that will, according to one construction, produce the exact equality, among his children, required by the second clause above referred to.

It can not be denied that if the two clauses named, stood alone, they would dispose of the whole estate, to take effect immediately. And while it is also true that if the second clause had been omitted, the remaining portions of the will would have ultimately disposed of the whole estate; yet, it might not have been to the same persons. The sons would have taken a present vested interest, the daughters a future contingent one.

But neither the second nor any subsequent provision can be rejected; but, so far as possible, effect must be given to all. The object of the clause directing the sale of “the town property” and the division of the proceeds, is not to confer title, but to effect an equal division of what had been already given.

The construction which the plaintiffs’ counsel claims should be put upon the clause in question, is thus stated in his printed argument:

“I do not understand the second clause, in which the testator expressed his ‘ wish’ and ‘ desire’ that his real estate should be equally divided among his children, to be a material, much less a controlling part of the will. It is not a willing or disposing clause. What the testator meant by it, and all he meant was, a simple, bare declaration, or assurance to all concerned, that in the disposition of the residue of his property — his realty — which he was about to make, he intended to have regard to the principle of equality — equal, not unequal, distribution among his children.”

But to deny to the clause the dispositive character which we have already stated in our opinion it should have, would violate the principle of equality in the distribution, of which, it is claimed, the testator wished to give assurance.

Besides, in the last clause of the will preceding that appointing his executors, and which may be designated the eighth, the right of possession of the sons is clearly postponed to the period at which they respectively become of age. The following is the language:

“ It is, also, my will and desire, that each of my sons get possession of the before mentioned lands as they arrive at age, excepting my youngest son, John; my will is, that all the land given to him, with all the privileges and appurtenances thereunto belonging, remain and belong to my beloved wife, Mary Ann Alter, during her lifetime or widowhood; but that after her death my son John, to have possession, provided he is of full age, and not before.”

There is no just grounds from which to infer that the words “my will and desire” were intended to be operative words here and not in the second clause.

The testator, after the second clause, already referred to, gave to each of his sons, his heirs, or assigns, a specific tract of land of a specified value; limited the time of entering into possession to the period at which each should become of age, except John (whose right might be postponed beyond that period); and directed that each of his children should “draw their proportion” of the rents of the town property from the same period. After the sale of the town property, he directed the proceeds, including the several sums given to his three sons in land, and the money and other property given to his sons-in-law and charged to them, to be equally divided among his then living children or their heirs.”

The plaintiffs claim that the term heirs is used as a word of purchase, and that, the decease of their mothers having taken place before the period.for making the sale had arrived, they are the persons designated to take the proceeds. And, that the devise or bequest was contingent, and did not vest until the period for the sale, or, if it did, that it then shifted and vested in them.

Construed literally, the term “ heirs,” as used in the phrase u my then living children or their heirs,” would stand as a word of limitation, having reference to the children then living. But referring it to the living children alone, would cut off every class of representatives of those deceased, and be against the manifest intention. A literal construction of the language would exclude the plaintiffs. They, however, admit that the Avords “ or their heirs,” mean the heirs of the children then deceased. But they claim that they do not derive title under or through their respective mothers, but immediately under the will, and as direct objects of the gift. If their standing is* that of purchasers, the only source of their title is the clause of the will directing a division; and, as before stated, we do not regard this clause as creating title, but as directing the time and mode of completing the division of what had already been given.

In view of the other provisions of the will, we agree that the words “ or their heirs ” were designed to provide for the case of such of his children as might die before the time for final distribution. But they were not designed to provide a neAV class of beneficiaries. “ Heirs ” is. used as a word of limitation, and those only, under it, can claim to share in the distribution, who derive title under, or through, a deceased child. All Avho stand in the place of such children, as regards the property in controversy, whether by purchase or operation of law, are entitled to share in the division — none others are. For example: The testator gave to Charles and “ his heirs,” in land, $1635.00. To the others a much larger amount. The final division’ was to include the amounts given to the sons in land, the amount of money and property advanced and charged to the sons-in-law, as well as the proceeds of the sale of the town property. As he had received much less than his brothers, he would be entitled to share in the town property. His right to the possession of the land was postponed until he became of age, at which time he was, also, to draw his proportion of the rents of the town property. His interest in the latter was no more contingent than in the former. And the term “ heirs ” is used in the same sense, in the distributing clause, as in the specific devise to Charles.

In the event of his death before distribution, the character of his estate or interest, in neither property would have been, thereby, in any wise, changed; but would have passed to those representing him, whether they claimed by purchase, or under the law. The term has the same meaning as applied to the interest of each of the other children, as it does as applied to the interest of Charles.

We can discover in this will no intention, on the part of the testator, to discriminate against the daughters; but, on the contrary, a manifest design to place all of his children on an equal footing. The specific devises to the sons, we regard as in part execution of the equal division which he desired to effect, as expressed in the second clause; and the sale of the town property and the division of the proceeds, in the manner directed, as designed, merely, to consummate this division.

As the plaintiffs could only take through their parents, and, as the latter conveyed all their interest in their lifetime, the former acquired no title to the premises.

Their petition, therefore, was properly dismissed, and the relief, asked by the defendants, granted.

Brinkerhoee, C.J., and Scott, Ranney, and Wilder, JJ.,, concurred.  