Opinion
No. 31032
Decided December 31, 1947.
Wills — Rule favoring vesting of estates at death of testator — Controlled by intention of testator as gathered from whole will — Wife given life estate in homestead — Equal division among testator's children at wife's death — Heirs of deceased child devised part due parent — Child died after testator but prior to life tenant — Estate vests in child's heir at termination of life estate — Such child's heir receives title from testator and not from parent.
1. The rule in favor of estates vesting at the death of the testator, like every rule of construction, is controlled by the intention of the testator as gathered from the whole will.
2. Where a testator gave to his wife a life estate in his farm and provided that at the death of his wife the farm should be equally divided among his children, and if any of his children should die and leave heirs such heirs should receive the part due their parent, one of such children having died subsequent to the death of the testator, and prior to the death of the life tenant, leaving a son, the estate which was due his parent vests in such son at the termination of the life estate. Such son receives his title directly from the testator and not from the parent.
APPEAL from the Court of Appeals for Preble county.
This case originated in the Court of Common Pleas of Preble county, Ohio, as an action in partition. The appellant herein is The Preble County National Bank (hereinafter referred to as the bank). The answering appellee herein, Robert Brower, by cross-petition sought the construction of the will of Sylvanus A. Brower, deceased, and presents the question of law for the court's consideration and decision.
The testator, Sylvanus A. Brower, died February 15, 1901, the owner in fee simple of a farm of about 200 acres. By his will the testator gave his wife, Emma S. Brower, a life estate in the farm.
Item II of his will is as follows:
"At the death of my beloved wife the said Emma S. Brower, said homestead shall be equally divided between my five children, viz.: Vesta Brower, Frank M. Brower, Ada Jane Brower, Stella Brower, Stanley J. Brower. Said homestead shall be disposed of in such way so as to be to the best interest of my children. By selling it as a whole or dividing it between them as they would be the better satisfied. Further if in case any of my children should die and leave heirs I desire that said heirs shall receive that part due its parent."
The testator was survived by the five children named in his will. The widow of the testator died September 25, 1945. At the time of the death of the widow, Vesta Brower, now Vesta A. McCulloch, Frank M. Brower, Ada Jane Brower, now Ada Jane Yost, and Stella Brower, now Stella Brower Eikenberry, appellees herein, survived. Stanley J. Brower died intestate in 1927 survived by his wife, Edna Brower, and Robert Brower his only child.
Stanley J. Brower in the year 1921 executed a promissory note and a mortgage securing same on an undivided one-fifth interest in the real estate involved herein. The bank is now the owner of the note and mortgage and by cross-petition set up its lien and asked for judgment.
Robert Brower, by cross-petition, claims that by virtue of the will of Sylvanus A. Brower he is seized of an undivided one-fifth interest in the real estate in question free from any claim, right or lien of the defendants, Edna Brower, the surviving spouse of Stanley J. Brower, or of the bank; that he acquired the undivided one-fifth interest under the will of Sylvanus A. Brower and not as an heir-at-law of Stanley J. Brower; and that any interest therein Stanley J. Brower may have had his lifetime was divested by his death prior to the death of his mother. Robert Brower accordingly asks that his title to such one-fifth interest be quieted as against Edna Brower and the bank, and that they be forever barred from having or claiming any right, title or interest in or to the premises.
The Court of Common Pleas found upon the issues thus presented that at the time of the sale of the premises in partition Robert Brower had an absolute fee simple estate in one-fifth of the property; that the bank had no right, title or interest therein; that Stanley J. Brower "had a defeasible fee simple estate which was divested by the occurrence of his death prior to the death of Emma S. Brower, the life tenant, and that Robert Brower takes an absolute fee simple estate as devisee in the executory devise."
Upon appeal on questions of law and fact perfected by the bank to the Court of Appeals, that court rendered the same judgment as the Court of Common Pleas.
The case is in this court upon the allowance of a motion to certify the record.
Mr. Charles E. Weber and Mr. Thurston F. Bittle, for appellee Robert Brower.
Mr. John E. Ernst and Mr. John V. Dye, for appellant.
The record presents a single question of law which is: Under the will of Sylvanus A. Brower did Stanley J. Brower have a vested interest in the real estate involved subject only to the life estate of Emma S. Brower, or did he have a defeasible fee simple estate which was divested by the occurrence of his death prior to the death of the life tenant?
The same question, differently stated, is whether Robert Brower received his title to a portion of the real estate directly from his grandfather or from his own father?
The lien of the bank is on the interest and title of Stanley J. Brower and the decision of the question presented determines the validity of its lien.
The contention of the bank is that at the death of the testator a one-fifth interest in his land vested in Stanley J. Brower, subject only to the rights of the life tenant, and hence that he (Stanley J. Brower) could legally encumber his interest therein.
The bank argues that in the provision, "if in said case any of my children should die and leave heirs I desire that said heirs shall receive that part due its parent," the words, "should die and leave heirs," are referable to the death of the testator and mean "should die" prior to the death of the testator, and, therefore, that Stanley J. Brower having survived his father the title to one-fifth of such real estate became vested in Stanley J. Brower upon the death of his father.
The answering appellee contends that, although the early vesting of estates is favored, a contrary intent and purpose of the testator is clearly disclosed by the language employed in his will.
The rule in favor of the vesting of an estate at the death of the testator, like every rule of construction, will be controlled by the intention of the testator as gathered from the whole will. 41 Ohio Jurisprudence, 729, Section 614, and cases cited.
The testator probably had little knowledge of such terms as contingent remainder, defeasible fee, executory devise, etc., but he evidently did know just what he desired to do with his home farm, and it is the duty of the court to brush aside technical constructions and endeavor to determine, from the language of the will, the intent and purpose of the testator.
In our opinion that purpose is expressed in clear and unambiguous terms. He wanted his wife to have, during her lifetime, the homestead on which they resided. He desired that at her death the farm be disposed of in such way as would be to the best interest of his children, whether by dividing among them or by selling and dividing the proceeds. That event might not occur until some years in the future, and in the meantime one or more of his children might have died, and it was his desire, which he clearly expressed, that in such event the heirs of any deceased child should succeed to the rights and interest of his parent.
Rules of construction are designed to aid in the interpretation of wills. None should be permitted to thwart the desire and purpose of the testator when they may be ascertained from the language employed. From the language employed, it is clear that, regardless of the time when any of his sons or daughters should die, their surviving children should upon the division or distribution of the property, following the death of the life tenant, receive the part thereof due the deceased parent.
The rule is well settled that provisions such as those used in this will, referring to the contingency of death, no limit as to the time thereof being expressed, must be construed as meaning death at any time. Here the language, expressed in the will, is general and not restricted to death of the devisee within the testator's lifetime. Had it been the purpose and intention of the testator to limit the devisee's death to the time within or during his own lifetime it could have been very easily indicated. 41 Ohio Jurisprudence, 690, Section 575, and cases cited.
We direct particular attention to the cases of Niles v. Gray, 12 Ohio St. 320; Briggs v. Hopkins et al., Exrs., 103 Ohio St. 321, 132 N.E. 843; Ohio Natl. Bank of Columbus, Gdn., v. Harris, 126 Ohio St. 360, 185 N.E. 532; and Steinbrenner v. Dreher, 140 Ohio St. 305, 43 N.E.2d 283. The principle announced and applied in those cases is controlling in this case. In practically every aspect the Harris case is similar to the instant case. It is stated in the opinion in that case:
"Under the foregoing authorities * * * the words 'die without issue' would be interpreted as referring to the time of the death of * * * the first taker. By a parity of reasoning, where the devisee dies leaving issue, the use of the words 'in case she dies leaving issue,' or words of similar import, should likewise be referable to the time of the death of that devisee."
In the Harris case the primary estate was an immediate estate in fee simple while in the instant case it is a vested remainder in fee simple preceded by a life estate which is to be followed by a final distribution as directed in the will. In the instant case the testator, having provided a life estate in the home farm for his wife, and directed that upon her death it should be divided among his five children, but in the event one of them had theretofore died leaving an heir, such heir should receive his parent's share, the portion of the estate which was due the deceased parent vested in his surviving son, the result being that such heir received his title directly from the testator and not from the parent.
No beneficial purpose would be served by the discussion or even the citation of the many cases bearing on the question here presented, some of which are readily distinguishable in the facts involved but none of which are inconsistent with our conclusion in this case.
We are in accord with the judgment of the Court of Appeals. That judgment therefore is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.