Gibson v. Anderson

5 Ohio Law. Abs. 166, 1927 Ohio Misc. LEXIS 1294

• Court: Ohio Court of Appeals
• Decided: January 24, 1927
• Docket: No. 2904
• Status: Published

Opinion

BUCHWALTER, P. J.

The question involved herein is the construction of the following will:

“Sunday, Oct. 7, ’23.

I Margaret Gibson Anderson, bequeath all my worldly goods to my dear husband, Edward Anderson.

(Signed) Margaret Gibson Anderson. Witnesses :

P. G. H. Enderson.

Mrs. Chas. F. Snyder.”

This question was submitted to the Hamilton Common Pleas on an agreed statement of facts, under authority of 11427 GC.

The testatrix died seized of ancestral property; and if this will disposes of decedent’s real estate it would pass in fee-simple to her husband, Edward Anderson; if not, said ancestral estate, under the laws of descent in Ohio, passes to the brother, in fee simple, subject to a life estate in said Edward Anderson.

The lower court entered a decree adjudging-that Edward Anderson was the owner in fee simple of the estate. To reverse this judgment, error is now prosecuted. The Court of Appeasl held: ,

1. The words used in the will are words which are usually used to refer to personal property. “Bequeath” is usually used in disposing of personalty.

2. From various authorities the term “all my worldly goods” refers to and expresses personal property only and does not include real estate.

3. “The rule that a testator will not be presumed to have intended to die intestate as to any part of his estate, to which his intention seems to have been directed, applies only in the construction of a will the language of which is of equivocal import.” Gilpin v. Williams, 17 OS. 397.

4. “The presumption against partial intestacy cannot have the effect of a bequest of property where none in fact was made. The question before the court must be not what should the testator have done, but what did he do, and .what did he mean by the words actually employed.” Oglesbee v. Miller, Excr., Ill OS. 426, 433.

5. To pass title to real estate under the will, it would be necessary to change the meaning of the words of disposition, so as to have “bequeath” construed as “devise” and "worldly goods” construed as “worldly goods and real estate”. It would, under the guise of construction, change the meaning of the will and dispose of property where by the language of the will the testatrix made no disposition thereof.

6. Judgment reversed and judgment entered that Thomas Gibson is the owner in fee simple subject to the life estates.

Decree accordingly.

(Hamilton & Cushing, JJ., concur.)