Foster v. Clifford
Foster v. Clifford
Opinion of the Court
We must presume that the will in question was drawn with knowledge, on the part of the testator, of the laws of distribution of the state of Ohio. The word “distribution” applies' particularly to personal property, but the use of the word by the testator in this case should not be taken in its technical sense, but should be extended so as to apply to all the estate, real, personal and mixed.
It is urged by counsel for the widow that the testator had in mind Section 8574, General Code, applicable to non-ancestral real estate, and Section 8592, pertaining to personal property, and that these sections, together with Sections 8573, 8578 and 8606, should be read into the will; that, reading these sections into the will, the testator, in the us'e of the words “my widow” and “in the cases where wives survive husbands' who die intestate,” intended to give to his widow all that she would have .taken had no will been written. There are two sections of the Code,
But, in construing this will, we must not depart from the well established rules of construction. The rule approved by this court in Robbins v. Smith, 72 Ohio St., 17, should be recognized, and the “conflicting provisions of a will should be reconciled so as to conform to the manifest general intent.” It was evidently the intention of the testator, in the case at bar, and clearly so we think, that the widow was to have but a part, or interest, in the estate, real and personal. This is evidenced by the use of these words in Item two, and the bequest and devise to James E. Foster of the remainder of the property, real and personal, in Item three, gives additional force to this position. The brother is to receive a portion of the personal property, and, if the construction claimed by the widow is tenable, Item three of the will, as to personal property, would be wholly ineffective.
The part the widow was to receive is the part secured to her by the laws of distribution of the
Had the testator intended that James E. Foster should have the Kentucky real estate only, this could have been provided for by a devise to him of that property, and the residue of the estate to the widow. This certainly would have been the ordinary and customary method, but clearly the intention of the testator was different, for he provides that the widow is to have a part of the
Evidence was offered by counsel for plaintiffs in error tending to show the circumstances of the testator, his character, the objects of his bounty and his ties of affection and the instructions to the scrivener who drew the will. This evidence was rightly rejected by the trial court, in accordance with the well settled rules as to the competency of extrinsic evidence in the construction of a will, as laid down by this court in Lessee of Worman v. Teagarden, 2 Ohio St., 380, and Townsend's Exrs. v. Townsend, 25 Ohio St., 477. It appears, from the record, that the fact that the testator had no children, and the further fact that the property was acquired by purchase, were admitted, and no objection made to the use of these facts in aiding in the construction of the will. We might say that, in our view of the matter, these facts are wholly immaterial — the part of a husband’s estate secured to his wife being the same whether there are children or not, or whether the property is ancestral or nori-ancestral.
Our attention has been called to the case of Smith v. Hunter, Trustee, 86 Ohio St., 106. This case, in our opinion, is not in point, and is not applicable to the case at bar.
We conclude, therefore, that, under the terms of this will, the widow is entitled to her dower interest in the Ohio real estate and to one-half of the first four hundred dollars and to one-third of the remainder of the personal property subject to distribution. In addition thereto, she would be
Judgments of the circuit and common pleas courts reversed, and judgment for plaintiffs in error.
Judgments reversed.
Reference
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- Testator gives wife all property secured to her — By Ohio laws of distribution — Where wives survive intestate husbands — Gives all remaining property to brother — Wife thereby receives only dower interest — And allowance — Under Sections 86oy and 10656, General Code. A testator gave to his wife all that part and interest in his estate, real, personal and mixed, which is secured to her, as his widow, by the laws of distribution of estates of the state of Ohio, in the cases where wives survive husbands who die intestate, and gave, absolutely, the remainder of his property, real, personal and mixed, to his brother. Held: That, under this will, the widow took her dower interest in the real estate of the testator, situated in Ohio, one-half of the first four hundred dollars and one-third of the remainder of the personal property subject to distribution, the use of the mansion house, under the provisions of Section 8607, General Code, and the year’s allowance provided for in Section 10656, and that the remainder of the estate, real, personal and mixed, went to the brother.