Gallagher v. Gallagher

VICKERY, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in partition brought in the Cuyahoga. Comjmjon Pleas. A construction of the will of Parrel Gallagher was necessary to determine Who were to be the distributees of the fund realized on the sale of the property on partition. The will left a lot and two houses to the wife of Gallagher for life and provided that. if the property was sold by the wife during her lifetime, the proceeds, after her death, should go to the six minor children who were named. The provisions of the will were such that if the wife failed to sell the property, an intestacy would be created after her death. The case came on appeal to the Court of Appeals, which held:

When a man makes a will there is a presumption against intestacy. In case there were an intestacy after the death of the wife, all the children would inherit equally. The whole will must be construed to get at the manifest intention of the testator. It is the opinion of this court that the testator meant to disinherit the four eldest children, and that it was his intention to leave the property for the minor children whether it was sold or kept intact by the' mother. Decree accordingly.