| Mo. | Oct 15, 1885
Alexander Dudgeon, Sr., died in Howard county, leaving a will, which was admitted to probate .on the eleventh day of December, 1882, and which contained the following provisions:
‘ ‘ Second. I will that all property be equally divided amongst my children, viz: Archie Dinwiddie, my grandson, who is entitled to one share; Bernard P. Dudgeon, Martha Settle, Alexander Dudgeon, William A.-Dud-' geon, and John Dudgeon, after their paying to my estate what I have them charged with on my cash book.
“ Third. I give my son, John Dudgeon, eighty acres, the east half southwest section 28, township 50, range 15; and my son, Alexander Dudgeon, .the home-place, containing 267 acres, as follows: 107 acres, east part southwest section 29, township 50, range 15; also, 160 acres, northwest section 29, township 50, range 15. '
'■'■Fourth. To my grandson, Archie Dinwiddie, seventy acres, south part west half southeast section 20, township 50, range 15. My son, Alexander Dudgeon, Jr., and my grandson, Archie • Dinwiddie, has received larger advancements than the rest of my children, including the land I have given them in my will, and they are to advance to the other children to make all equal. * * * The 267 acres given my son, Alexander Dudgeon, is to him and his wife, during their lifetimes, and at their death, to my-son’s, Alexander Dudgeon’s, bodily heirs,”
The plaintiffs in this case are four of the children of -the decedent, and allege substantially in their petition that the total value of the estate, including the value of the land devised and advancements made by deceased in his lifetime, amounted to the sum of $19,425; that, to make each one of the six devisees equal, each one would be entitled to the sum of $3,237.50 ; that each one of the
It is conceded that to make the children and devisees equal sharers in the estate of the decedent, each one should receive the sum of $3,237.50. It is also conceded that each one of the" plaintiffs had not received this sum, but a much less sum, by way of advancement-It is also concededdhat the value of the two hundred and sixty-seven acres of land devised, when added to the advancement of three hundred dollars, made to Alexander in his father’s lifetime, would exceed the amount of $3,237.50, in the sum of $3,737.50. But it is contended that, inasmuch as Alexander, the son, only took a life estate with remainder in fee to his bodily heirs after his death, that the said excess of $3,737.50 could only be charged against the life estate, and' not against the fee. Such a construction as is contended for would not execute the manifest purpose of the testator, but would, on the contrary, defeat it. It is clearly shown by the second clause of the will that the testator intended that all of his children should share equally in the distribution of his estate, and that no one of • them should have any advantage in this respect over any other. In order to insure this result he provides that each shall account for the advancements made by him in his lifetime, and being
It is manifest that the devise of two hundred and -sixty-seven acres of land to Alexander, Jr., created an inequality in the distribution of decedent’s estate, and in view of this fact, which was in the mind of the testator, as :a part of the consideration for the devise, Alexander was required to restore the equality by payment to the other children of the excess given him by devise; and in such case the law attaches an equitable lien on the land'for the sum required to be paid. Clyde v. Simpson et al., 4 Ohio St. 445. If the land devised was worth the sum ■of $6,750, which seems to be admitted after the payment to the other children the sum of $3,767.50, the amount of the excess, to make each of their shares equal, $3,250, there would still be left to Alexander and his children, in the event of his having any, the like sum of $3,250, he having received an advancement of three hundred dollars in his father’s' lifetime. The construction put upon the will by the trial court in its decree brings about the above result, and gives to each child the same amount, thus effectuating and carrying out the intention of the testator. On the other hand, if it be construed, as counsel contend it ought to be, that it was the intention of the testator to make the payment either a personal charge on Alexander or his life interest only, it “would require the payment of more than his life interest was worth,'
The judgment of the circuit court is affirmed,