54 Ohio Law. Abs. 535 | Ohio Ct. App. | 1948
OPINION
This is a law appeal from the Court of Common Pleas of Clark County, Ohio. The action was instituted by plaintiff, S. W. Rehm, as Executor of the Estate of Henry Otis Core, deceased, seeking the construction of the last will and testament of the testator.
The record discloses that Della Core, the surviving spouse and life tenant, died while the action was pending. The
The sole controversy turns on the construction of Item IV of the will which provides:
“ITEM IV: — All the rest and residue of my personal property as herein defined, and all my real estate, I hereby give, devise and bequeath to my wife, Della Core, for and during the term of her natural life, and upon her death I give, devise and bequeath all the same to such of my nieces and nephews as may then be living, and the heirs of the body of any of said nieces and nephews as may then be deceased, if they die leaving heirs of the body. Division between such nieces and nephews shall be made per stirpes and not per capita. However, in case any of my said nieces and nephews should then be dead without having left heirs of the body, their share or shares shall go to those living, and to those who may have died leaving heirs of the body, per stirpes.”
The trial court held that each niece and nephew shall take only his proportionate share of the one-fifth interest of the estate, which is per stirpes and not per capita distribution. The error assigned is that the judgment is contrary to law and not supported by the language of the will. A cardinal rule for the interpretation of a will is to ascertain and give effect to the intention of the testator which must be ascertained from the language used in the will. It must be gathered from the whole will, that is, from all of its provisions including codicils, if any, and considered in the light of every other provision as an entirety. 41 O. Jur. 600, Sec. 469. The intention is to be gathered from the words of the will itself as applied to the subject matter and read in the light of the surrounding circumstances. It is not necessarily that intention which existed in the mind of the testator, but that which is expressed by the language of the will giving effect to every word and clause if possible. Where the words of one part of the will are capable of a twofold construction that interpretation should be adopted which is most consistent with the intention of the testator as ascertained by other provisions of the will. The clear intention should prevail even though it might require some departure from the literal construction of one of its clauses. 28 R. C. L. Sec. 178.
In the third sentence the testator made provisions for two contingencies; first, that one or more of his nieces or nephews predeceasing Della Core without leaving heirs of the body; and the other, one or more of his nieces or nephews predeceasing Della Core leaving heirs of the body. This sentence provides only for a substitutional bequest and since all of the nieces and nephews survived Della Core, its interpretation is of no importance except to say that it is in no way contra to the second sentence.
The judgment is affirmed.