Everhard v. Brown

I find myself unable to agree with the conclusion announced by my associates regarding the time of vesting of the estate in remainder in case No. 195.

The will in question provides:

"Item 4. I give, bequeath and devise the residue and remainder of my property * * * in trust * * * upon the following trusts and for the following purposes, viz.: * * *

"Third: To collect the dividends and income therefrom and * * * to pay over all or any part of the residue of said dividends and income remaining to my said wife, Ella M. Everhard, at such time or times as she may or shall desire or request during her natural life.

"Fourth: At the decease of my said wife and within six months thereafter to pay [then follow certain specific bequests].

"Fifth: My said trustees * * * shall proceed to divide and distribute the residue of my estate among the nephews, nieces, grandnephews and grandnieces of myself, and the nephews, nieces, grandnephews and grandnieces of my wife, Ella M. Everhard, share and share alike, grandnephews and grandnieces receiving the sameshare as the nephews and nieces." (Italics mine.)

The pole star of will construction is the ascertainment of the intention of the testator, as gleaned from an examination of all the provisions of the will. If that intention can be thus determined, and the same be lawful, then it should be made effective; but if, after such examination, the meaning of the words used remains ambiguous, recourse may then be had to "such rules of interpretation as the reasoning and experience of the courts have wrought out and established by common consent as tending to the uniform administration of justice." Barr v. Denney, 79 Ohio St. 358, at p. 366,87 N.E. 267.

So far as the specific bequests to W.P. Ellenberger and Lydia Isenberger are concerned, it is apparent that the testator intended them to vest at his death.

The principal question here involved is, When does the will state the interests of the residuary legatees shall vest: at the death of the testator, or at the death of his wife?

The will provides for a "share and share alike" distribution by the trustees to the "nephews, nieces, grandnephews and grandnieces" of testator and his wife, "grandnephews and grandnieces receiving the same share as nephews and nieces." (Italics mine.)

In order to effectuate that provision of the will, which provision, in my opinion, is clear and unambiguous, it is necessary to determine that the nephews, nieces, grandnephews and grandnieces of the testator and his wife, living at the death of testator's wife, are the persons entitled to participate. Such determination accomplishes the clearly expressed intention of the testator, and those persons within the designated class all receive a "share and share alike" distribution. Any other conclusion defeats the manifest and clearly expressed intention of the testator, and in my opinion ought not to be reached.

The case of Ohio Natl. Bank of Columbus, Trustee, v. Boone,139 Ohio St. 361, 40 N.E.2d 149, 144 A.L.R., 1150, is not decisive of the question here to be determined. In that case the majority of the court held that there was such language used in the will as to give rise to an ambiguity. There, recourse to the rules of will construction was necessary to determine the intention of the testator. Such, however, is not the case here. In my opinion there is in this will no ambiguity; hence, recourse to the rules of will construction is unnecessary and improper.

As to all questions presented in this action, it is my judgment that they were properly resolved by the Probate Court. I therefore conclude that a decree as entered in the Probate Court should be here entered.

I concur in the conclusion announced in case No. 196.