Opinion
1947-08-28
WALTER et al. v. STEEL et al.
M. D. Beard, of Delta, for plaintiff. John F. Darby, of Wauseon, for minor defendants.
Action by Earl Walter and others against Lee Steel and others for construction of the will of David J. Pelton, deceased, and to quiet title.
Decree in accordance with opinion.M. D. Beard, of Delta, for plaintiff. John F. Darby, of Wauseon, for minor defendants.
HAM, Judge.
This is an action for construction of the will of David J. Pelton and to quiet title.
On the 26th day of October, A. D. 1892, David J. Pelton died seized of the lands in controversy and leaving a last will and testament which in due time was duly admitted to Probate and record. The will bore the date of November 12, 1891.
The sixth and eighth items of that will are as follows, viz.:
‘Item sixth.-I give and devise to my grandson Jesse Morningstar forty acres of land, in fee simple, said land lying directly north of the twenty acres devised to my son Darius Pelton and described in item five-subject however to this condition that he shall not sell it until he arrives at the age of twenty four and I hereby appoint Rozy Porter, my daughter, guardian of the property herein devised to my grandson Jesse Morningstar and they shall account to the Probate Court for all profits and emoluments arising from the cultivation of said land, for his use and benefit.’
‘Item eight.-Should my grandson die without issue of his body then I direct that the land herein devised to him to be divided equally between my son Darius Pelton and my two daughters Rozy Porter and Clarissa Farmer.’
The testator in his lifetime conveyed ten acres of the forty acres mentioned in Item 6, and the wheel of controversy revolves around the remaining thirty acres.
The testator's only heirs were his two daughters, one son, and Jesse Morningstar, a grandson, only child of a deceased daughter of the testators. These heirs likewise were the sole beneficiaries under the will. These two daughters and son are dead, but left children.
The grandson was a minor at the testator's death, and, some years after he became twenty-four years of age, on the first day of September A. D. 1916, he duly conveyed this thirty acres to Mary Morningstar, predecessor in title, through successive deeds, to the plaintiffs.
In our opinion there is one rule of construction of statutes, contracts and wills that is both important and impelling in arriving at a true construction of this will.
That rule is, that which is plainly implied is as much a part of a statute, contract or will as that which is expressed. Schneider v. Carroll, Com.Pl., 17 Ohio Supp. 69, and cases cited; 41 O. J. Secs. 472-610; Linton v. Laycock, 33 Ohio St. 128;Clyde v. Simpson, 4 Ohio St. 445.
Another most persuasive rule, especially in wills, is that construction is favored which gives effect to every word, every sentence of a will. Krieger v. Stauffer, Ohio Com.Pl. 67 N.E.2d 449;Hart v. Board of Church Erection Fund, Com.Pl., 14 Ohio Supp. 8, and cases cited.
It would be difficult to envisage a situation where these two rules would be more applicable and effective than when applied to these words of the will (item 6) viz.: ‘he shall not sell it until he arrives at the age of twenty four.’
If the inference is not plain that he could sell the land when he arrived at the age of twenty four, then the words quoted are mere surplusage and sterile and impotent.
Bearing these rules in mind, let us consider the rule laid down in the pioneer case of Parish's Heirs v. Ferris, 6 Ohio St. 563; and the more recent cases of Ohio Nat. Bank v. Harris, 126 Ohio St. 360, 185 N.E. 532;Steinbrenner v. Dreher, 140 Ohio St. 305, 43 N.E.2d 283; and Briggs v. Hopkins, 103 Ohio St. 321, 326, 132 N.E. 843.
Those cases hold that, nothing in the context to require a different construction, the words ‘dying without issue’, as used in Item 8 of this will, should be construed to mean ‘dying without issue at anytime’ and not ‘dying prior to the testators death.’
We must accept this rule so well established in this state, though it would seem that ‘the weight of modern authority’ is to the contrary. See Page on Wills, Volume 3, Sec. 1292, p. 784.
The text, however, recognizes the ‘Ohio’ rule and cites many cases in accord with it. Page on Wills, Section 1292, p. 787, Volume 3.
But in that section of the text, the author says:
‘Others hold that the prima facie meaning of the words is the death occuring atfer that of the testator but related to a definite period if any is expressed in the will rather than to an indefinite failure of issue.’ (Emphasis ours)
The case of Howard v. Howard's Trustees, 212 Ky. 847, 280 S.W. 156, is cited in support of the text. We quote the first syl. of that case, the facts in which are strikingly similar to those in the instant case: ‘The law favors vesting of estates, and limitation such as ‘dying without issue,’ refers to a definite period, fixed in will, rather than to an indefinite failure of issue.'
We call attention to the case of Fetterman v. Bingham, 115 Ohio St. 35, 152 N.E. 10. The decision in that case seems to blend harmoniously with the text in Page which we have just quoted. The instant case in our opinion, factually, is close to Fetterman v. Bingham, supra. The same is true of the N. Y. decision (Colby v. Doty, 158 N.Y. 323, 53 N.E 35) from which Judge Day quotes in his opinion in the Fetterman case.
In our opinion, following the rule in the Fetterman case, the ‘time’ which the testator intended to fix was the date when the grandson attained the age of twenty-four years; and that when he arrived at that age, the possibility of a gift over becoming effective no longer was present. It would follow that the fee conditional became absolute.
However, let us assume, for the nonce, that the ‘time’ of the grandson's death was intended to be indefinite. What would be the result? Admittedly, in Item 6, the testator in clear, unequivocal language gives the land to the grandson ‘in fee simple.’
That denies the power to devise a gift over (conditional on the grandson's death without issue) of a remainder to the two aunts and one uncle. A gift over of a remainder could not be made, simply because a remainder cannot be implemented on a fee. It follows that the aunts and uncle could only take, if at all, by way of executory devise; and we are confident that they could not.
‘A gift over after a fee which is defeated, under the terms of the will, by the death of the devisee without heirs of his body, issue, children and the like * * * is an executory devise.’ Page on Wills, Volume 3, Sec. 1133, pp. 397, 398.
The author in his annotation to the text cites a wealth of cases including, Durfee v. MacNeil, 58 Ohio St. 238, 50 N.E. 721;Briggs v. Hopkins, 103 Ohio St. 321, 132 N.E. 843.
See also: Thompson's Lessee v. Hoop, 6 Ohio St. 480;Gaston v. Moore, 38 Ohio App. 403, 176 N.E. 483;Lapham v. Martin, 33 Ohio St. 99; Thompson Interp. Wills Sec. 357, page 444, and note 81.
An observation by the court (Barnes, J.,) in the case of Jones v. Jones, 48 O.A. 138, 150, 192 N.E. 811, 816, is particularly impressive here, because of the fact that here, as in that case, the testator used unequivocal language devising a fee. From Barnes, J., we quote: ‘In the case of Collins v. Collins, 40 Ohio St. 353, 364, we find the following:
“It is a rule of the courts, in construing written instruments, that when an interest is given or an estate conveyed in one clause of the instrument in clear and decisive terms, such interest or estate can not be taken away or cut down by raising a doubt upon the extent and meaning and application of a subsequent clause, nor by inference therefrom, nor by any subsequent words that are not as clear and decisive as the words of the clause giving the interest or estate.”
‘The question arises here whether or not we have two conflicting rules relative to language creating a fee-simple estate and another clause creating a fee subject to be divested on the condition of dying without issue. Attention should be called to the fact that in every instance in which the Supreme Court of Ohio has ruled that the words ‘die without issue’ mean death of the first taker at any time, it has been in a case where no words of inheritance follow the gift to the first taker.' (Emphasis ours)
The grant, by the will, of the power to sell, destroys the executory devise and the attempt to make a gift over fails. Sec. 357, p. 444, Thompson's Interp. Wills; 69 C.J. 586; Sec. 1135, p. 400, Volume 3, Page on Wills.
There is another and more impelling reason why the heirs of this uncle and the two aunts cannot claim any interest, conditioned, contingent or what not, in this land.
That is: They do not take as successors or substitutes to what ever interest, if any, was given their respective ancestors. The statute, Sec. 10504-73, G.C., does not aid them. Everhard v. Brown, 75 Ohio App. 451, 458, 62 N.E.2d 901.
‘If a gift over is made to B in case A dies without issue, and B dies before A, A's estate is said to become absolute.’ 3 Page, Wills, page 762, Sec. 1284.
In its annotation to the author's text, is cited Michael v. Minchin, 90 N.J.L. 603, 101 A. 283.
That text is in happy accord with a case reported in Ohio, Collins v. Collins, supra.
There the testator, after giving a life estate to his widow, gave his lands to his two sons, Silas and William, ‘and their heirs,’ and further provided that if either died without issue his share should go to the survivor. Silas died leaving children and William surviving; and it was held (syl.) ‘the vested estate of William in the one undivided half of the lands, was no longer subject to be divested by the contingency expressed in the will’. (Emphasis ours)
The case at bar is factually so much on a parallel with those in the case last cited that it would seem to foreclose any further discussion. In the instant case, the two aunts and one uncle all died prior to the grandson attaining the age of 24 years, and when he dies, if he dies without issue, there is no one who can take by way of executory devise, and therefore when he became 24 years of age his estate was absolute.
In conclusion: Whether we interpret the words ‘die without issue of his body’ to mean his death at an indefinite period of time, or to mean a fixed date-when he arrived at the age of 24 years-the result is the same. That result is, that when he (the grandson) arrived at the age of 24 years he was seized of this land in fee, and it was such an estate which he conveyed by his deed to the predecessors in title of the plaintiffs.
A decree may be entered in harmony with this opinion.