Owsley v. Price

16 Ohio C.C. Dec. 260, 4 Ohio C.C. (n.s.) 273

• Court: Trumbull Circuit Court
• Decided: October 15, 1903
• Status: Published

Opinions

COOK, J.

Tbis is an action for partition of real estate and comes into tbis court on appeal.

Tbe question involved is tbe construction of the will of Thomas Price and tbe effect of an election by Mary L. Price, his widow, in tbe probate court, to take under tbe will.

At tbe time of making tbe will, and also at tbe death of Thomas Price, be and bis wife were the joint owners of 51 y2 acres of land in Trumbull county, be being the owner of 19-28, and she 9-28. These premises were their homestead and they bad jointly occupied it as such for a number of years, it being an ordinary small farm. They obtained title through a joint deed executed to them. Thomas Price at tbe same time was also the sole owner of two small tracts of land, one containing; one acre and the other one-fonrth of an acre. His will provided as< follows:

“Item 3. I give and devise all my real property which I do now' possess or may possess at the time of my death containing at the present; time the homestead of 51% acres, more or less, recorded in TrumbulT county records, Yol. 105, page 36, and Yol. 139, pages 6 and 7; also as-' recorded in county records YoL 142, page 26, containing one acre o£ land; also as recorded in county records Yol. 147, page 336, containing' one-fourth of an acre of land, to my beloved wife, Mary Louise Price, during her natural life, not to be sold nor exchanged by her; then after her death one year, it is my wish that my executor hereinafter named shall cause all of the said property, my real property as above mentioned, also any other that I may possess at the time of my death to be sold as he may see fit, and the proceeds to be by him, my executor, equally divided between the eight following named persons.”

The widow, Mary L. Price, on being cited to appear in the probate court, to elect whether or not she would take under the will, elected in court to take under the will.

The widow, Mary L. Price, after such election made a will by which she devised her 9-28 interest, or undivided part, of said 51% acre tract to Mary Jane Owsley and her husband, C. H. Owsley, as she expressed it in the will “as a reward for kindness and care that they have extended to me in years past, asking them that at my death they will see that I have suitable burial by the side of my deceased husband, Thomas Price. ’ ’

C. H. Owsley succeeded to all the rights of Mary Jane Owsley in said premises under such will, if she had any. The Owsleys were not included in the eight beneficiaries named by Thomas Price in his will.

It is claimed that this case is ruled by Hibbs v. Insurance Co. 40 Ohio St. 543. We do not think so. In that case the provision of the will was “ *1 give and devise to my beloved wife, in lieu of dower, the farm on which we now reside, * * * containing about 200 acres, during her natural life.’ ” Also, the will gave her a large amount of stock on the farm, bank stock, etc., and the clause concluded with the words, “ ‘At the death of my said wife, the real estate aforesaid I give, devise and bequeath to my grandson, William Miller.’ ” Eighty acres of the 200 had come to the wife by descent, was her sole property, and had been so incorporated with the farm for many years as to entirely lose its identity as a separate tract. The widow elected to take under the will and the court held by so doing she relinquished her fee in the eighty aeres under the doctrine as stated in the case, page 55.3, “that if a testator has affected to dispose of property which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit.so, given to him must.make good the testator’s attempted disposition; but, if on the contrary he chooses to enforce his proprietary rights against the testator’s disposition, equity will sequester the property given to him, for the purpose of making satisfaction out of. it to the person whom he has disappointed by the assertion of those rights.”

And, again:

“ ‘It is a well-settled principle of equity, that where a will assumes to give to one of its beneficiaries property belonging to another person, for whom provision is likewise made in the will, the latter is bound to elect whether he will claim the property so disposed of, or take the provision made for him in the will; and that he cannot have both.’ ”

While there is no question but what this is the general doctrine as stated in the authorities, yet, they all agree that the rule is a harsh one, and in Charch v. Charch, 57 Ohio St. 561, 580 [49 N. E. Rep. 408], it is said:

“But it is also well settled that the language of the will expressive of the intent to give another’s property must be unequivocal.”

If the provision in question, taken in connection with the whole will, will reasonably admit a construction not involving a disposition of such property, that construction must prevail. In order to create the necessity for an election, there must appear on the face of the will itself a clear, unmistakable intention on the part of the testator to dispose of property, which is in fact not his own. The language must be so clear as to leave no doubt as to the testator’s design; as in Hibbs v. Insurance Co. supra, where the testator gave to the wife in unequivocal words the whole farm, “the farm on which we now reside,” and which was at his death to go to the grandson. The necessity for an election cannot arise from an uncertain or dubious interpretation of the will.

In Charch v. Charch, supra, the testator held a number of insurance policies upon his,life. Two of them were payable to his wife upon his death, she being named as beneficiary, while several others were payable to him or his estate. The language of the will was, page 571:

“I direct that my executor collect and realize on my life insurance policies, which I hold upon my life, and distribute the proceeds in accordance with the terms of my will and codicil. ’ ’

The will and, codicil provided that the wife was to receive during, her life $100 per month so long as her two daughters remained unmarried, and then $70 per month, and also to have the use of residence free of taxes and assessments during her life, and in addition thereto $1,000 in ■cash upon his decease. The court held that although all the policies of insurance were in the possession of the testator at the time he made the will and up to his death, yet it could not be said that he intended to bequeath the two policies in which his wife was named beneficiary; and although she elected to take under the will in the probate court and persisted in her election, yet the proceeds of .the two policies should go to her.

Judge Spear, in the opinion says, page 577:

“The subject-matter is his policies — my policies, is the phrase. The words following ‘which I hold’ would, in common parlance, signify manual possession, but the expression is subordinate to that which precedes, and taken in connection with it, implies possession of that which was his'. Nor is the result different if a technical legal meaning is given the word ‘hold.’ In deeds it signifies tenure. But tenure cannot exist in favor of one respecting that in which he has no property interest. If the question were as to a devise of land in this form, ‘all my land of which I have possession,’ would any intelligent mind assume that .the will evinced a purpose to convey land of another which might at the time happen to be in the possession of the testator ? Surely not. The canons of construction will not permit a provision clearly disposing only of property in the possession of the testator of which he is the owner to be held to include property in his possession which belongs to another.”

Again, he says, page 580:

“The case at bar is dissimilar from Hibbs v. Insurance Co. 40 Ohio St. 543, relied upon in argument, in this important particular. There the description of the property of the wife was clearly defined, and it was clearly included in the devise; here it is not only not clearly included, but is, as we think, clearly excluded by the terms of the codicil.”

In the case under consideration the property was an undivídéd interest in land. The husband’s possession would also be the wife’s, possession. The provision of the will is:

“I give and bequeath all my real property which I do now possess or may possess at the time of my death, to my beloved wife, Mary Louise Price, during her natural life, not to be'sold nor exchanged by her; then after her death one year, it is my wish that my excutor hereinafter named shall cause all of the said property, my real property as above mentioned, also any other that I may possess at the time of my death, to be sold as be may see ñt, and tbe proceeds to be by bim, my executor, equally divided between tbe eight following named persons.”

Tbe testator, it seems to us, took special pains only to include his own property. The provision is “my real property which I possess or may possess at my death.” Then again his executor is ordered to sell all of the said property, my real property, not his wife’s real property, but his own real property, which he possessed, of which he had the tenure.

In construing wills there is one rule applicable to all wills alike, and that is, that the meaning and intention of the testator is to be ascertained from the language of the will itself, so that but little aid is given in one case by the construction adopted in another.

In order, therefore, to make this ease on all fours with Hibbs v. Insurance Co. supra, it would be necessary to exclude from consideration the words “my real property which I do now possess or may possess at .the time of my death,” and to reject the inference connected therewith from the reference to the recorded deed of the farm in question, which shows that his real property consisted only of an undivided interest therein. Indeed not a shadow of resemblance could be made between that ease and this, were it not for the words “containing at the present time the homestead of 51% acres, more or less.” These words, however, are themselves equivocal, and taken in connection with the other words of the sentence, “I give and devise all my real property which 1 do now possess,” they are made still more equivocal, and the only consistent interpretation that can be put upon them is that the testator meant and intended to say ‘ ‘ contained in the homestead, ’ ’ instead of ‘ ‘ containing’ ’ the homestead. At all events it is impossible to say that the testator clearly intended to devise to his wife her own property— property he did not possess as his own — in using the words of description contained in this item. In one sense he was in possession of his wife’s share of the farm, that is, as tenant in common, but the words “which I do now possess or may possess at the time of my death” do not, and cannot be, held to refer to and include property thus held, because the testator himself limits their application to property owned •solely by himself: “I give and devise all my real property which I do now possess;” and “my executor hereinafter named shall cause all of the said property, my real property above mentioned,” to be sold.

This intent, so unequivocally expressed by the words, to include in the devise only that part of the real property which he himself owned,, should be the controlling factor in the interpretation of this will.

In the case of Melick v. Darling, 11 Ohio 343, the syllabus of the case is:

“To create a ease of election, there must be a plurality of gifts or rights, with an intention, expressed or implied, of the .party who has a right to control one or both, that one should be a substitute for the other.”

It is true that at that time the syllabus was not necessarily the law of the ease, but Wood, J., on page 350 of the opinion in the opening sentence uses the same language.

That was a case in which the testator and the devisee were tenants in common. The language of the will was, page 345, “I also give unto my grandson, Jeremiah Beatty, the southwest quarter of section seven, •township five, range ten.” In the same will provision was made for Abram Darling. The testator and Abram Darling were tenants in common of the southwest quarter of section seven in township ten, devised to Jeremiah Beatty, the patent having been issued to both of them. The court held that it was not the intention of the testator to devise both interests, and that Abram Darling was not required to surrender his moiety in order to retain the property devised and bequeathed to him by the will.

In Rancliffe v. Parkyns, 6 Dow 185, cited in note to Dillon v. Parker, 1 Swanst. 359, 394, Lord Elden said that:

“It is difficult to apply the doctrine of election where the testator has some present interest, in the estate disposed of, though not entirely his own.”

In French v. Davies, 2 Ves. Jr. 578, it is held that before you can prevent the legal right, the intention must be perfectly clear. The intention must be so clear that a judge can say it is impossible the testator could mean the defendant to have both.

Decree for plaintiff, ordering partition of premises as prayed for.,

Laubie, J., concurs;