Koontz v. Hubley

2 Ohio Law. Abs. 117

• Court: Ohio Supreme Court
• Decided: January 5, 1924
• Docket: No. 18301
• Status: Published

Opinion

Action to sell real estate to pay debts and for a construction of the will- of Samuel A. McCune, commenced in Hamilton County Common Pleas.

The plaintiff and defendants are here found in the same relations as they were in the trial court.

The question before the Supreme Court is the construction of the two item's in the said will, as follows:

Item No. 3. To my friend Henry ,Warren Koontz ... in consideration of his long and faithful services to mly deceased wife and to myself, extending over a period of mjore than 20 years,- I give, bequeath and devise $2,QiOO.OO to be paid within 'six months after miy death. Should he die before me, then to be paid to his wife, Helen Wagoner Koontz.

Attorneys — Powell & Smiley, Cincinnati, for Koontz; Maekay & Mackay and Boettinger & Street, Cincinnati, for Hubley.

Item No. 6. All the property, both real and personal, of every kind and description where soever situated which I may own at the time of my decease not heretofore devised, including the property at ... to my grandson, Samuel McCune Hubley. . . .

McCune did not leave enough personal property to pay the $2,000.00. The Common Pleas held that this was chargeable against the real estate. The Court of Appeals overruled the Common Pleas.

Plaintiff claims that Item 6 is not a specific devise and is therefore chargeable with the legacy at Item 3.