Corbley v. Patterson

| Oh. Ct. Com. Pl., Hamilton | Apr 15, 1893

BATES, J.

I. I rejected evidence of declarations of the testator, that he intended to treat each brother and sister, or their heirs, equally. But I admitted evidence that the parcels of land devised to each was approximately equal in value, being each worth about 82,-000, and also the testator’s declarations, that considered the parcels as about equal.

' This evidence shows that the word “pro1 rata” in the residuary clause, are equivalent to providing for an equal division among the heirs.

II. The next question is, who are the heirs? Now, in Huston v. Crook, 38 Ohio St., 328, and McKelvey v. McKelvey, 43 Ohio St., 213, theresiduary clauses required an equal division of the residue among the aforesaid heirs, and those who had been named in the body of the will, where children and erand-children in one case, and various nephews and nieces in the other, to each of-whom individually, and by name, and without reference to his or her parentage, specific sums had been bequeathed, and it was held that they took under the residuary clause per stirpes, and not per capita,' each standing as an equal heir.

But in the case at bar the children of deceased brothers and sisters are called the heirs of the deceased brother or sister, and receive their shares in the capacity of such heirs by reason of their parentage, and not separately, or by name, with but one exception, and each family is remembered as a class in separate paragraphs. It follows to my mind that the rule laid down in the two foregoing citations does not apply by reason of this distinction, and that the heirs must take per stirpes, and not per capita.

III. Of course, the testator had no heirs at the time he wrote the will, for he was not then dead ; but the brothers and sisters or their children were his heirs apparent. The Humane Society, Widows’ and Old Men’s Homes and Children’s Home, were not heirs apparent, and cannot be classed as heirs to share in the residum. The same fact occurred in the McKelvey case, supra, where the facts show that twenty-three bequests were made, twenty-one to heirs, those who would be heirs, one to a person not a heir, and one to a church. The court ordered the residuum, to be divided into twenty-two equal parts. They must therefore, have excluded the person not an heir, or the church; it is not stated which; but the exclusion o£ either supports the conclusion reached above.

Tugman & Baker, for Executors. E. P. Bradstreet and Nathaniel H. Davis for Heirs.