Moore Admr. v. Blauser Admr. , 25 Ohio App. 48 ( 1926 )

HOUCK, J.

The parties here are in reverse order. John W. Blauser, Administrator, brought this action in the Licking Common Pleas against James L. Moore, Administrator, to determine and construe Items 3 and 4 of the will of Alonzo Beem, deceased.

The items in question are in part — Item 3.— “I give, devise and bequeath to my said wife, Mary Beem, the control, use, possession, proceeds, and income from all the balance of my property, real, personal and mixed of every description that I may die seized of, wherever situated for and during her natural life, and should my said wife, at any time during her lifetime become an invalid and helpless, and the aforesaid use, income and proceeds from my said property should be insufficient for her comfortable support, then in that event, it is my will that my wife, Mary Beem, may sell any such portion of my real estate of which I die seized, that may be necessary for her comfortable support and apply the proceeds to her said support.” Item 4 — “After the death of my said wife, Mary Beem, having no children of my own, nor any adopted children, all the remainder and residue of my said property of whatever nature the same may be, after my said wife shall have received her said support therefrom as heretofore provided and the aforesaid devise to her absolutely as heretofore provided in this my will, I give, devise and bequeath as follows: etc.”

The finding and judgment were in favor of Blauser and Moore brings this appeal in error claiming that the finding should have been in his favor. The Court of Appeals held:

1. In the interpretation and construction of the language used in a will, the rule is well settled that when the language is plain and the meaning obvious, courts are without power and have no right to qualify or control such language in any way by conjecture or doubt arising from extraneous facts.

2. The question to be determined is whether from the items mentioned, Mary A. Beem had the right to consume the corpus of the personal property, the contingency that she would become an invalid having never arisen.

3. The language here used is clear, definite and certain, and is in no way ambiguous or uncertain and the court is o'f the opinion that under the will Mary A. Beem had only the use and control of his personal estate and no right to the corpus.

Judgment affirmed.

(Shields, J., and Lemert, J., concur.)

Note — OS. Pend, will be found in 5 Abs. 60.