Cosbey v. Executors of Lee

2 Disney (Ohio) 460

• Court: Ohio Superior Court, Cincinnati
• Decided: February 15, 1859
• Docket: No. 10,446
• Status: Published

Opinion

Storer, J.

It will readily be seen the testator has not, in the devise to the heirs of his brother-in-law, conveyed any intermediate estates, or suspended the enjoyment of the estate devised, upon any future event. The father of the plaintiffs took no interest, either directly or indirectly. His name is used only to designate more clearly those who were intended to receive the remainder of the estate.

We must hold, then, that whoever were intended by the testator to be designated by .the word “heirs,” take, at his death, a vested interest; else their portions would be in abeyance, or the bequest itself be void for uncertainty. If, therefore, a right became vested, the question arises, to whom did it pertain ? The plaintiffs being then alive, and well known by the testator, were not the heirs of Samuel Cosbey, as he was still in being; nor could they, at his death, derive a title through him; but they were, nevertheless, the apparent heirs, and may all be regarded as coming within the meaning of the term. Thus, in Darbison v. Beaumont, 1 P. Wins. 231, it is said: “The word ‘heir’ has, in law, several significations; in the strictest, is signified one who had succeeded to a dead ancestor ; but in a more general sense it signified an heir apparent, which supposed the ancestor to be living. Since the law had given to this word several senses, it would be hard to expound it in that which was the strictest and most rigorous, and would destroy great part of the will; when it might have another sense, which would support the whole will and intent of the party.” And it was held, accordingly, that a devise to the heirs male of J. S. would enable a son of J. S., then living, to take. So, in Goodnight ex dem. v. White, 2 W. Bl. 1,010, it was decided that a devise to the heir of W. may be good as “ designate personce,” and he may take in the lifetime of W.

De Grey, C. J., in giving his opinion, said: “ Two hundred years ago it might have been thought not sufficient, but within a century past, a more liberal construction of the testator’s words has prevailed; and they have been generally taken in their popular sense, which is most likely to have been his meaning.”

So, in 15 Ohio, 559, King v. Beck, our supreme court has fully recognized the doctrine that the word “heirs” may be construed to mean children, when it is necessary to effect the object the testator had in view.

The same ruling is found in 2 Dess. 33, Brailsford v. Heyward’s ex’rs; 4 Pick. 198, Bowers v. Porter; 5 Barbour, S. C. 190, Arnold v. Gilbert; 12 B. Mon. 115, Hughes v. Hughes.

We have no doubt, upon principle, as well as authority, we are permitted to substitute the word “children” for that of heirs, in the clause before us, without violating any legal principle, or giving any unnatural meaning to the term. In so doing, we are satisfied we are but carrying out and vindicating the testator’s intention.

A decree will be so entered.