Kline v. Marsh

12 Ohio C.C. 645

• Court: Ohio Circuit Courts
• Decided: July 15, 1894
• Status: Published

Opinion

Swing, J.

We are of the opinion that the matter in controversy here falls within the rule in the case of Richey v. Johnson, 30 Ohio St., 288. By the will of Marsh,as to the Galt House property, there was no vesting of the real estate in the Marsh children; but the gift was of personalty, and to the heirs living at the time distribution of the proceeds could be made, to-wit: August, 1895.

We have gone over twice the briefs of counsel in this case, and have given them such careful consideration as we are capable of. We do not think it necessary in deciding the case to review the authorities cited. All cases and all authorities recognize the fact that the main and controlling rule is that the intention of the testator when ascertained is to prevail; and further, that generally the construction placed on one will very seldom furnishes much aid in the construction of another. You can get general rules, but when you want to get the real meaning of a will, the words used taken in connection with the surrounding circumstances must furnish the most reliable means of getting at the true meaning.

James JE. Robinson, for Plaintiff. Bateman & Harper, contra.

Our reading of the will indicates to us that the testator intended to place this particular property in the hands of his executor to lease it, to mortgage it, or sell it under the various contingencies provided for, and after sale the net proceeds to be divided equally between his children, or^to their heirs in case of their death before such sale. It is a gift of personalty, and to those living at that time; or in case of death before such sale, their heirs, if living, and those who take the bequests.