Strock v. Strock
Strock v. Strock
Opinion of the Court
The parties to this proceeding in error stand here in the same relation to each other as they stood in the court below.
This is an action brought by George W. Strock for the partition of certain real estate, described in the petition of the plaintiff, of which the testatrix, Mary Elizabeth Clark, died seized; but said real estate was acquired by her after the execution of her last will and testament.
The conceded facts are as follows: On April 4, 1910, Mary Elizabeth Clark, who then owned no real estate, made and executed her last will and testament. Her estate at the time, as specifically described in her will, consisted only of mortgage securities, bonds, stocks, money loaned, and cash in bank, from which personal estate she gave and
“Item 10. The balance and remainder of my property of every kind and description I give and bequeath to Curtis King and his wife, Jennie King, and to Roy Sipe and his wife, Alice Sipe, share and share alike; that is, to Curtis King and his said wife the one-half of the amount left after all of the above gifts, and to Roy Sipe and his said wife the other half remaining after all of the above gifts.”
The only question to be determined in this case is, Does the real estate acquired by the testatrix subsequent to the making of her will pass by the terms and provisions thereof ? This question must be solved by a proper, true and correct interpretation of the terms and provisions of the will now before us for construction; but in arriving at the intention of the testatrix it is not necessary to construe the entire will and all of its provisions if the question to be determined can be ascertained from one clause thereof, which we think it clearly can in the instant case, the clause being the residuary clause as contained in “Item 10.” Counsel for plaintiff in error urges that the will before us be construed according to certain rules of construe
“Any estate, right or interest, in lands or personal estate or other property acquired by the testator after making his will, shall pass thereby, as if held or possessed at the time it was made, if such manifestly appears by the will to have been his intention.”
Let us inquire: Does the language used in Item 10 of the will before us plainly and manifestly
We feel that the law is well settled that such words in the residuary clause of a will wholly and entirely preclude an interpretation to die intestate as to any property of which the testator may die seized. The learned counsel for plaintiff in error relies upon the case of Wright, Admr., v. Masters et al., 81 Ohio St., 304. We have examined it with much care and can not agree with the claim thus made. A careful reading of the opinion in the above cited case, at pages 312 and 313, clearly dis
“This rule of the common law has, however, been so far modified by statute [Section 10579, General Code] in this state that property acquired by a testator subsequent to the execution of his will, shall pass thereby, if, from the will itself, it shall appear with sufficient clearness that such was the intention of the testator. * * * The language of this statute clearly indicates its limitation, and shows it to have been the purpose of the legislature to restrict its operation to those cases where the intent of the testator to pass after-acquired property is clearly and sufficiently disclosed in his will. Hence, in every instance, the question involved becomes one of -construction, and the intent of the testator must be sought in the will itself. The will under consideration in the present case makes no reference whatever in any of its provisions to after-acquired property. The property therein devised by item one to Mary Masters during her life is definitely designated and specifically described, and there is in the provisions of said will no hint or suggestion anywhere of a purpose on the part of the testator to give her more than the property thus specifically described. This will contains no residuary clause, and there is in it no clause, either general or specific, under which the property in controversy would or could pass to Mary Masters as devisee, even if the testator had owned the same at the time he executed said will.”
It will be seen that in-the case of Wright v. Masters et al. the will contained no residuary clause, and there was no provision in it, either general or
We wish to call the attention of counsel to the case of Newton v. McKinstry, 16 C. C., N. S., 219. A careful examination of this case as to the facts and the law, as laid down by the learned judge in the opinion, leads to the conclusion that it is a case directly in point with the instant case, and that the doctrine enunciated therein is also decisive of the question before us.
In view of what we have already said we hold that the will of Mary Elizabeth Clark passed the real estate in controversy, which was acquired by her after the execution of her will. Thus finding, it follows that the judgment of the common pleas court must be affirmed.
Judgment affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.