Bierce v. Bierce
Bierce v. Bierce
Opinion of the Court
The case has been fully and ably argued. Counsel have aided us by exhaustive citations from decided cases. After a full review we are satisfied that a careful reading of the will in the light of the circumstances of the testator and of his relation to the objects of his bounty, plainly indicates its true construction.
“ The rest and residue ” of the estate “real and personal” was to he kept by the widow during her life time. In case, during the widow’s life time, Ann should be deprived of the support of a husband, either by his death, his sickness, or otherwise, Ann could occupy the house and garden on lot No. 11, Circleville, free of charge. From and after the widow’s death, all of the property then remaining, real as well as personal, was to “ constitute a fund for the support and maintenance of Ann and her children during her life.” The words “ shall constitute a fund ” are full of meaning. The word “fund” savors of personalty; it means something that can be invested and reinvested. It included, as we think, the intent, that, if for the increase of income or the full and proper maintenance and support of Ann and her children, any sales of realty should become necessary, such sales could lawfully be made: — the proceeds taking
But it is' claimed that because the will directs that at Ann’s death '•'•the same shall be equally divided between her children; ” and that in case no child of hers survived her “ the property then shall be equally divided ” between certain nieces of the testator, the charge in favor of the support of Ann and her children ought to be limited to the-income of the fund.
If a specified parcel of land be devised to A., without further words indicating the estate so given, and the same land is devised “ upon the death of A. to B.,” of course A. can hold only as tenant for life and cannot lessen the estate of the devisee in remainder. But “ a fund ” charged with the support of A. for her life, does not cease .to be “ the fund” because some of its principal is necessarily consumed in supporting A. Hence the words “ the same ” are not so definite as to require, or even to justify, a denial of needed support to Ann and her children during her life, in order to pass to those children, or to her cousins at her decease, the unbroken “ residue.” Considering the relation of the testator to Ann, the natural interpretation of his words treats that support as the primary, the paramount object in his mind. He used more words in providing for Ann and her children during her life, than in stating all of his other devises and bequests. The grant for her benefit, standing by itself, is full and complete. We have no right to limit it unless, without we do so, no reasonable construction. can be placed upon the subsequent clauses of the will.
It is urged that Ann’s minor children were not properly served. The original return showed that a certified copy of the summons was handed to each minor and one also to their mother with whom they were living. It did not state affirmatively that a copy was left at the usual place of residence of their father. The decree included a finding by the court that all the defendants had been legally served. Oral proof that the mother was at her husband’s home when the sheriff handed the copy to her did not contradict the return. After the formal finding by the court the pre
Judgment affirmed.
Reference
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