OPINION
By HORNBECK, PJ.
This action had its inception in the Probate Court of Greene County, Ohio, from the judgment of which Court [17]*17there was an appeal to the Court of Common Pleas, and from that Court an appeal to this Court on questions of law and fact.
There is a stipulation as to the testimony which is embodied in the short bill of exceptions.
In the petition filed in the Probate Court, plaintiff, Katie Lang Herr, Administratrix, alleges that Peter Lang-died leaving a will, setting out the defendants whom she alleges to be legatees and devisees mentioned in the will of Peter Lang. She asserts that she is in doubt as to the true construction of said will, and that she cannot safely proceed without the direction of the Court, and prays for judgment and direction in regard thereto.
Anna M. Boedeker and others answered. to the effect that she is the daughter of Peter Lang, and that the other three answering defendants are her sole children, all past the age of majority, being the. grandchildren of Peter Lang, and that George Boedeker is her husband; that the defendant, Daniel Lang;, is the son of Peter Lang, and the said Emma Kendig is his sole child and a granddaughter of Peter Lang; that the defendant, Katie Lang Herr, is the daughter of Peter Lang, and the six enumerated defendants are her sole children, all of whom are grandchildren o'f Peter Lang.
It is alleged that Peter Lang died on June 25, 1923, leaving surviving his widow, Mary Ann Lang, who is now deceased.
The answering defendants join in the prayer of plaintiff’s petition, asking the court to construe the provisions of the will — “particularly as to whether said defendants, Daniel Lang, Katie Lang Herr, and Anna M. Boedeker have life estates only in the estate. or whether they have a vested estate and a fee simple title to the real estate of Peter Lang, deceased.”
The Probate Court rendered judgment as exemplified by an entry of August 12, 1938, from which a notice of appeal was given to the Court of Common Pleas, both by the plaintiff and a number of defendants.
The Court of Common Pleas, on August 17, 1939, rendered a judgment substantially the same as that of the Probate Court, to the effect that Items
I. II and III need no construction, but that Item IV is to be construed as set out at length in said entry.
Notice of appeal from the judgment of the Court of Common Pleas was given by the plaintiff and by certain of the defendants.
The appellants for their assignment of errors alleged to have been committed to their respective prejudice by the Probate Court and the Court of Common Pleas, state as follows:
“ERROR IN THE PROBATE COURT.
1. That the judgment of the Probate Court is contrary to law.
2. That the Court erred in finding that the estate passed to the grandchildren of the Decedent, per stirpes instead of per capita.”
“ERROR IN THE COMMON PLEAS COURT.
1. That the judgment of the Common Pleas Court is contrary to law.
2. That the Court erred in sustaining and affirming the judgment of the Probate Court of Greene Co., in this case.
3. That the Court erred in finding that the estate passed to the grandchildren of the decedent, per stirpes, instead of per capita.”
Items I and II of the will have no relation to the questions to be determined; By Item III, the testator devised to his wife, Mary Lang, all the household goods for and during her natural .life; that other personal property be turned into money by the executor, the proceeds by him to be held in trust and invested according to law, the income to be paid to the wife during her natural life, or so long as she remains the widow of the testator.
He also devises and bequeathes to his wife the income from all the real estate for all her natural life, or so long [18]*18as she remains the widow, provided she pay taxes.
Item IV is as follows:
“ITEM IV. At time when rights of my said wife ceases, either under the law or under this will, in any of my said property, or at my death, should I outlive her, there being children living at any of said times, I give, devise and bequeath to my said executor hereinafter named, or his successor, in trust to hold, manage and invest according to law, such child’s or children’s interest, and the proceeds thereof to pay to my said legal heirs and representative in shares according to law. But, at the death of any of my children, their legal heirs and representatives shall come into possession of that deceased child’s share at once, and take it in fee simple, in such shares as provided by law. If all of my children be dead at my decease, and my said wife be also then dead, or at time when rights of my said wife ceases to or in my said property as aforesaid, then I give, devise and bequeath the residue of my said property to my legal heirs and representatives according to law. The word “children” as herein used does not mean “grandchildren”.
However, if my said children can amicably agree upon a division of the real estate among themselves, they may so divide the real estate among themselves as they think' best and may control and manage the portion of the real estate set off to each, and after paying the taxes thereon and keeping the same in reasonable repair, use the income thereof to their own benefit. But they are given only a life estate, and the said real estate is to pass to their heirs in fee simple.”
Peter Lang left surviving, in addition to his wife, three children, Katie Lang Herr, Daniel Lang and Anna M. Boedeker, all of whom are now living. Daniel Lang, has one child, Emma Kendig; Anna M. Boedeker has three children, Edith Ballman, Ed Boedeker and Carl Boedeker; Katie Lang Herr has six children, Peter G. Herr, Frank L. Herr, Marie Groth, Emma Herr, Anna Freeders and Charles Herr.
The real estate of the decedent consists of about eight hundred (800) acres of land in Greene County, and ten (10) tenant houses in Fairfield, Greene County, Ohio, and personalty amounting to . about $50,000.00.
The Probate Court and the Common Pleas Court construed the will in the same manner. It was held generally that under Item IV of the will a trust was created for the benefit of the legal heirs of decedent, (his three children) for and during their natural lives, subject to certain changes, reductions or extinguishments of said real estate in the event of the death of any or all of said children.
That the life estate so vested in the children of decedent is coupled with a power for amicable division of the real estate which, if executed, will remove the- real estate from the control of the fiduciary and each child is thereby permitted to manage, control and receive the benefits from the real estate so selected by him (subject to payment of taxes and keeping same in reasonable repair) exclusive of any interest or claim of any other child of the decedent but that the interest of each child in the land so selected by him is but a life estate.
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OPINION
By HORNBECK, PJ.
This action had its inception in the Probate Court of Greene County, Ohio, from the judgment of which Court [17]*17there was an appeal to the Court of Common Pleas, and from that Court an appeal to this Court on questions of law and fact.
There is a stipulation as to the testimony which is embodied in the short bill of exceptions.
In the petition filed in the Probate Court, plaintiff, Katie Lang Herr, Administratrix, alleges that Peter Lang-died leaving a will, setting out the defendants whom she alleges to be legatees and devisees mentioned in the will of Peter Lang. She asserts that she is in doubt as to the true construction of said will, and that she cannot safely proceed without the direction of the Court, and prays for judgment and direction in regard thereto.
Anna M. Boedeker and others answered. to the effect that she is the daughter of Peter Lang, and that the other three answering defendants are her sole children, all past the age of majority, being the. grandchildren of Peter Lang, and that George Boedeker is her husband; that the defendant, Daniel Lang;, is the son of Peter Lang, and the said Emma Kendig is his sole child and a granddaughter of Peter Lang; that the defendant, Katie Lang Herr, is the daughter of Peter Lang, and the six enumerated defendants are her sole children, all of whom are grandchildren o'f Peter Lang.
It is alleged that Peter Lang died on June 25, 1923, leaving surviving his widow, Mary Ann Lang, who is now deceased.
The answering defendants join in the prayer of plaintiff’s petition, asking the court to construe the provisions of the will — “particularly as to whether said defendants, Daniel Lang, Katie Lang Herr, and Anna M. Boedeker have life estates only in the estate. or whether they have a vested estate and a fee simple title to the real estate of Peter Lang, deceased.”
The Probate Court rendered judgment as exemplified by an entry of August 12, 1938, from which a notice of appeal was given to the Court of Common Pleas, both by the plaintiff and a number of defendants.
The Court of Common Pleas, on August 17, 1939, rendered a judgment substantially the same as that of the Probate Court, to the effect that Items
I. II and III need no construction, but that Item IV is to be construed as set out at length in said entry.
Notice of appeal from the judgment of the Court of Common Pleas was given by the plaintiff and by certain of the defendants.
The appellants for their assignment of errors alleged to have been committed to their respective prejudice by the Probate Court and the Court of Common Pleas, state as follows:
“ERROR IN THE PROBATE COURT.
1. That the judgment of the Probate Court is contrary to law.
2. That the Court erred in finding that the estate passed to the grandchildren of the Decedent, per stirpes instead of per capita.”
“ERROR IN THE COMMON PLEAS COURT.
1. That the judgment of the Common Pleas Court is contrary to law.
2. That the Court erred in sustaining and affirming the judgment of the Probate Court of Greene Co., in this case.
3. That the Court erred in finding that the estate passed to the grandchildren of the decedent, per stirpes, instead of per capita.”
Items I and II of the will have no relation to the questions to be determined; By Item III, the testator devised to his wife, Mary Lang, all the household goods for and during her natural .life; that other personal property be turned into money by the executor, the proceeds by him to be held in trust and invested according to law, the income to be paid to the wife during her natural life, or so long as she remains the widow of the testator.
He also devises and bequeathes to his wife the income from all the real estate for all her natural life, or so long [18]*18as she remains the widow, provided she pay taxes.
Item IV is as follows:
“ITEM IV. At time when rights of my said wife ceases, either under the law or under this will, in any of my said property, or at my death, should I outlive her, there being children living at any of said times, I give, devise and bequeath to my said executor hereinafter named, or his successor, in trust to hold, manage and invest according to law, such child’s or children’s interest, and the proceeds thereof to pay to my said legal heirs and representative in shares according to law. But, at the death of any of my children, their legal heirs and representatives shall come into possession of that deceased child’s share at once, and take it in fee simple, in such shares as provided by law. If all of my children be dead at my decease, and my said wife be also then dead, or at time when rights of my said wife ceases to or in my said property as aforesaid, then I give, devise and bequeath the residue of my said property to my legal heirs and representatives according to law. The word “children” as herein used does not mean “grandchildren”.
However, if my said children can amicably agree upon a division of the real estate among themselves, they may so divide the real estate among themselves as they think' best and may control and manage the portion of the real estate set off to each, and after paying the taxes thereon and keeping the same in reasonable repair, use the income thereof to their own benefit. But they are given only a life estate, and the said real estate is to pass to their heirs in fee simple.”
Peter Lang left surviving, in addition to his wife, three children, Katie Lang Herr, Daniel Lang and Anna M. Boedeker, all of whom are now living. Daniel Lang, has one child, Emma Kendig; Anna M. Boedeker has three children, Edith Ballman, Ed Boedeker and Carl Boedeker; Katie Lang Herr has six children, Peter G. Herr, Frank L. Herr, Marie Groth, Emma Herr, Anna Freeders and Charles Herr.
The real estate of the decedent consists of about eight hundred (800) acres of land in Greene County, and ten (10) tenant houses in Fairfield, Greene County, Ohio, and personalty amounting to . about $50,000.00.
The Probate Court and the Common Pleas Court construed the will in the same manner. It was held generally that under Item IV of the will a trust was created for the benefit of the legal heirs of decedent, (his three children) for and during their natural lives, subject to certain changes, reductions or extinguishments of said real estate in the event of the death of any or all of said children.
That the life estate so vested in the children of decedent is coupled with a power for amicable division of the real estate which, if executed, will remove the- real estate from the control of the fiduciary and each child is thereby permitted to manage, control and receive the benefits from the real estate so selected by him (subject to payment of taxes and keeping same in reasonable repair) exclusive of any interest or claim of any other child of the decedent but that the interest of each child in the land so selected by him is but a life estate.
That if amicable division of the real estate is made and a child of testator die, then the children of such deceased child inherit the land so selected by their ancestor in fee simple and a full one-third interest in the personal property remaining in the hands of the fiduciary to be distributed among them according to law.
That if amicable division of real estate be not made the legal heirs of each child of testator shall inherit one-third part of the estate, both real and personal, in fee simple at the time of the death of the ancestor through whom they claim.
Certain' of the parties excepted to that part of the construction of the will which held that the estate of each [19]*19child of testator, if amicable, division of the real estate be made, cannot be enlarged to a fee simple estate but remains a life estate only in such child in the portion so set off to him or her.
Other parties, namely, Katie Lang Herr, individually, as administratrix, and her six children except to the construction of the will to the effect that “the legal heirs of each child of testator inherit the 1/3 part of the estate per stirpes and not per capita.”
Thus there are presented two main questions for determination. First, what interest do the children of the testator, Peter Lang, take under Item IV of his will, if they exercise the power there created to make amicable dirvision of the real estate among themselves? Two, m what proportions do the grandchildren of the testator take their shares under said item?
It is our judgment that the Probate and Common Pleas Courts correctly construed this item in all particulars and in their written opinions, both of which we have before us, set forth the reasons which require the construction made by them. We shall attempt to avoid unnecessary repetition.
On the first question the most cogent and convincing language in the item is found in the last sentence thereof, “But they (testator’s children) are given only a life estate, and the said real estate is to pass to their heirs in fee simple.” This language expresses with clarity the meaning and intent of the testator. It is true that it is a part of the paragraph discussing the amicable division of the real estate among testator’s children but in our judgment it is in harmony with all of the other language of the item. For instance, the first part of the item placing the shares of the children in the real estate of testator in trust and to be paid to them as provided is followed by the expression, “But, at the death of any of my children, their legal heirs and representatives shall come into possession of that deceased child’s share, at once and take it in fee simple m such shares as provided by law”. Clearly here is provision for an estate over and beyond the children of the testator, namely, to the grandchildren of the testator and it is expressly defined as a fee simple estate. It is a vested remainder in the grandchildren.
The next sentence is the only one in the item which is at all difficult of interpretation and this difficulty does not extend to the question of the nature of the estate created by the other parts of the item. It can have no application because the controlling contingency cannot occur, namely, that “all of my children be dead”. To give this portion of the item meaning, all of the children of the testator must be dead at his decease and his wife also then dead, or, all of the children be dead when the rights of the wife to and in the property shall have ceased. Inasmuch as all of testator’s children were living at the death of their mother, that portion of the item can never be effective. If it were effective the question of per stirpes or per capita distribution would be vital.
A determination of the second question propounded is found in the language of the item and requires no recourse to rules of construction except to give meaning to all parts of the will, if possible. We are not put to the necessity of applying the rule of per stirpes or per capita construction as affecting the interests of the grandchildren because the purpose of the testator is manifest from the language which he employed. We do- not dispute the principles controlling per stirpes and per capita distribution as announced in the minority opinion. Again the last paragraph is decisive of the purpose of the testator if his children survive him and his widow’s estate has terminated. Here he provides for an amicable division of the real estate among his children in which event they are to control and manage the portion of the real estate which has been set off to them, paying the taxes thereon and keeping the same in reasonable repair. They are given but a life estate and at their death the real estate which has been set off to them is to pass ta [20]*20their heirs in fee simple. This language is explicit. The specific real estate which by agreement has been set off to each child of the testator, upon his or her death, passes to his or her heirs, not to the heirs of another child. The first two sentences of the item apply if any or all of the testator’s children are living when the estate of his widow ceases by death or marriage. The third, and fourth sentences of the item control if all children are dead when the estate of the widow terminates. Any other construction would create a conflict between the first two and the following two sentences of the item.
In the first two sentences of the item is found the language, “But, at the death of any of my children, their legal heirs and representatives shall come into possession of that deceased child’s share at once, and take it in fee simple, in such shares as provided by law”. (Emphasis ours). That is to say that upon the death of any of testator’s children, all having survived their mother, their legal heirs are to come into possession of the share of their parent. Every word in this sentence indicates that the share which a child of the testator has enjoyed is at his or her death to pass to his or her legal heirs or representatives in the proportion that it would have passed had the parent owned the title in fee and had died without will, i. e., in such share as provided by law. A per capita distribution would enable the children of a child of the testator who was living and enjoying his life income in a third of the real estate upon the death of another child of the testator to take a share in the fee simple estate so vested. This would be the • antithesis of the intention of the testator in the situation whenever expressed in the item. The grandchildren of the testator will take in the proportions defined by the will as heretofore indicated.
Judgment accordingly.
BARNES, J., concurs.
GEIGER, J., dissents.