Clifford v. Foster

23 Ohio C.C. Dec. 429, 14 Ohio C.C. (n.s.) 391, 1911 Ohio Misc. LEXIS 224

• Court: Hamilton Circuit Court
• Decided: December 9, 1911
• Status: Published

Opinions

SMITH, J.

In the above case this court is called upon to construe the following will: '

“In the name of the Father of All, Amen. I, Thomas Foster of Cincinnati, Ohio, being of sound mine and memory, and well knowing the uncertainty of all life, do make, publish and declare the following for, and to be, my last will and testament, hereby revoking and cancelling all former wills by me made.

“1. I desire and direct that all my just debts be first paid out of my estate.

'“2. I give and bequeath to my beloved wife, Mary Foster, all that part and interest in my estate, real, personal and mixed, which is secured to her, as my widow by the laws of distribution ■of the state of Ohio, in the eases where wives survive husbands who died intestate.

“3. I give, devise and bequeath absolutely all the remain•der of my property, real, personal and mixed after the dispositions in items one and two herein have been made, and wherever the same may be situated, to my dear brother, James E. Foster, now of Chicago, Illinois.

“4. I hereby nominate and appoint my said brother, James E. Foster and George Clifford, of Cincinnati, Ohio, to be the executors of this will, and my faith in each justifies me to request herein, as I do, that they be not required to give bond.

“In testimony whereof, I have hereunto set my hand and seal, this first day of March, 1906.

“(Signed) Thomas Foster [seal.]

' “Signed, sealed, witnessed and declared, this first day of March, 1906, by the said testator, Thomas Foster, in our presence as his last will and testament, and signed by us as witnesses at his request, in his presence and in the presence of each other.

“(Signed) M. W. Conway,

“Joseph Clifford,

“Edwin Kelley.”

In the case of Townsend v. Townsend, 25 Ohio St. 477, the rule of construction of wills is as follows:

“1. In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.

“2. Such intention must be ascertained from the words . contained in the'will.

“3. .The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear from the context that they were used by the testator in some secondary sense.

“4. All the parts of the will must be construed together, and effect, if possible, given’ to every word contained in it.

“5. If a dispute arises as to the identity of any person or thing named in the will, extrinsic facts may be resorted to, in so far as they can be made ancillary to the right interpretation of the testator’s words, but for no other purpose.”

The evidence discloses that the testator, Thomas Foster, a resident of Cincinnati, Ohio, died in December, 1908, leaving as his widow', Mary C. Foster, to whom he had been married thirty-three years at the time of his death; he was eighty-three years old; he left no children. An older brother, James Foster, survived him.

The property owned by the testator consisted of personal and real property, the latter being in Hamilton county, Ohio, and Campbell county, Kentucky; he had acquired all.of this by purchase, no property that he left being ancestral.

With this evidence before us, under the rule above cited, we do not find any ambiguity in the will of the testator. It is apparent that he gave to his wife all of his personal property and real estate that would go to her by the statutes of Ohio had he died without making a will and she survived him, and this is to be governed by the laws of distribution contained in Gen. Code 8573, 8574, 8578, 8592, and 8606 of this state.

He, therefore, devised to his widow all of his personal property and all of his real estate within the state of Ohio; and to his brother all of his real estate lying outside of this state.

Some argument has been made upon the use of the words “secured to her” by the testator, but it is evident that in the use of these words, he meant what she would “obtain” or “have” as his widow.

We do not think the evidence of the attorney who drew the will, as to the declarations of intention of the testator, is competent.

Judgment affirmed.