Moore v. Deckebach , 46 Ohio App. 381 ( 1933 )

This is a proceeding on appeal from the court of common pleas of Hamilton county.

The action is one in partition and raises the question of construction under the will of Julius Stephany. The will was in the German language, and was evidently written by the testator without expert advice. Its English translation is as follows:

"Cincinnati, March 4th, 1893.

"My Last Will:

"I request that all property which I possess shall be transferred after my death to my wife Josephine Stephany, and that she shall have the use of the same as long as she lives and bears my name in honor and acts according to the principles which I have taught her and her children.

"(2) After her death everything shall be divided among the five children Louise, Rosa, Ludwig, Lina, Josephine or their descendants.

"(3) I have all confidence in my wife, therefore she shall take over the estate without giving any bond.

"(4) Should my wife not respect my last will, then my estate shall be divided according to the laws of the State of Ohio.

"(5) There is a life insurance policy for $2,000.00 fully paid up in the Northwestern Life Insurance Company of Milwaukee and which is for the benefit of my two oldest children Louise and Rosa and which they shall divide, share and share alike.

"I hope that you are all satisfied with this will and get along with each other in peace and content. Be good and see to it that you never put your father's name to shame.

"[Signed] Julius Stephany."

The plaintiff, Herbert E. Moore, is the relict of Rosa Stephany Moore, who predeceased her mother, the life tenant, who is also now dead. The plaintiff and this daughter of the testator had no children. All of the testator's children were living and married at the death of the testator, which occurred some fourteen years after the execution of the will.

The plaintiff claims that under the law and the provisions of the will title to a one-fifth interest in the property of the testator vested in his deceased wife upon the death of the testator, the right to possession only being postponed until the termination of the life estate, and that, therefore, as the sole devisee of his deceased wife, he is entitled to her one-fifth share in the estate.

It is the contention of the defendants that the plaintiff, not being a "descendant" of his deceased wife, can take nothing; the testator having by the use of this word confined the passage of title to the descendants of his children.

The rules of construction applicable to wills have been reiterated so frequently that they are now well defined and understood. All such rules, however, are mere aids to the court in securing the intention of the testator from the language used. One consideration, however, must be borne in mind, and that is that a court may not write for a testator a portion of a will, a provision which testator did not include in the will, although it is plain that he would have so provided if the contingency had occurred to him. In other words, the court may only construe what is written. It may not insert, interpolate, or amend.

Upon the death of the testator, the title to his property must vest in some one. In the instant case there can be no question that it vested in his five children, subject to the right of possession in the life tenant, their mother. Having once vested, it cannot be divested, unless the language of the will clearly requires such effect.

"The law favors the vesting of estates, and in the construction of devises of real estate, the estate will be held to be vested in the devisee at the death of the testator, unless a condition precedent to such vesting is so clearly expressed that the estate can not be regarded as so vested, without directly opposing the terms of the will. To this end, words of seeming condition will, if they can bear that construction, be held to have the effect of postponing the right of possession only, and not the present right to the estate." Linton v.Laycock, 33 Ohio St. 128. See, also, Tax Commission v. Oswald,109 Ohio St. 36, 53, 141 N.E. 678; Phillips, Exr., v. Cole,11 Ohio App. 431; Fletcher v. Rynd, 18 Ohio App. 136, 141; Stahl,Admr., v. Mohr, 35 Ohio App. 411, 172 N.E. 431.

The simple question thus presented for our consideration is, Did the testator use such language as to require that, upon the death of his child, wife of the plaintiff, the title vested in her of one-fifth of his estate must be divested, and reinvest in the surviving children of the testator, such deceased child having left no descendants?

We consider that this term used by the testator was employed to designate lineal descendants, children and grandchildren. Neither the child or such descendants being in being at the time set by the will for giving possession to the remainderman, we find no positive requirement in the will demanding the divesting of the title reposing in the wife of the plaintiff up until the time of her death.

It might have been the will of the testator, had it so occurred to him, that, in the event a child had predeceased the life tenant, and had left no lineal descendants, its share should be distributed to his other children surviving. We cannot write such an additional proviso in the will. It is not there, either in definite language or by reasonable inference.

The case of Wells v. Gatch, Admr., 21 Ohio App. 140,152 N.E. 772, is easily distinguishable from the instant case, in that "nearest heirs" of a child is a term denoting persons who can be ascertained; and such must exist. In the instant case there could have been descendants. There were none, and the alternative proviso fails in its application to divest the title reposing in the plaintiff by devise from his deceased wife.

We find, therefore, that the plaintiff, as the devisee of his deceased wife, child of the testator, is entitled to a one-fifth share in the property to be distributed.

Decree accordingly.

HAMILTON, P.J., and CUSHING, J., concur.