Mathews et al. v. Krisher et al.

estate and limited to her during her own life, there was no interest or estate remaining belonging to said testator which she as his widow could inherit during her life.

4. That by the rules of inheritance in Ohio it is necessary that the person inheriting real property should be in being at the time of such inheritance, otherwise no fee or other property rights can vest in that person after having departed this life.

5. That by reason of such limitation and the fact that the said testator left no children nor their representatives, the remainder or fee immediately vested in the brothers and sisters of said testator and their representatives at the time of his death subject to the testamentary dower estate of the widow and the legacies bequeathed by said testator. Jones et al. v. Robinson et al., 17 Ohio St., 180.

The interests or estate of the widow having been defined and limited by the will, the statutes of descent must fix the persons who have the next expectant estate therein. Section 4159, Revised Statutes.

6. As to what the plaintiffs mean by the limitation of an estate, we respectfully refer the court to that old but substantial and reliable authority: -Sharswoods Blackstones Commentaries, 1 vol., p. 513, sec. 155; Hopkins on Real Property, page 127.

A limitation determines the estate ipso facto, without entry it is conclusive of the time of continuance and of the extent of the estate granted and beyond which it is declared at its creation not to be continued. Williard on Real Property, page 520-102.

Words in a will are to be understood according to their ordinary, natural and legal significance

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unless it is manifest from the context or from other provisions in the will that the testator has used them in a different sense and unless the sense in which they were used is clearly apparent. 32 Ohio St., 1; Bradhurst v. Bradhurst, 1 Page, 331; Rathbone v. Dyckman, 3 Page, 9; Kingsland v. Rapely, 3 Edw., 1; 25 Ohio St., 477; Williard on Real Property, page 48; 17 Ind., 74; Townsends Exrs. v. Townsend et al., 25 Ohio St., 487 Weston v. Weston, 38 Ohio St., 478.

Technical words must be construed in a technical sense and should have their strict technical meaning unless it appears that the testator used them in some other and secondary sense. Howe v. Fuller, 19 Ohio, 56.

Are not then the words "All my real property" and "All my personal property moneys and credit" given as dower sufficient to limit the widow to a life estate in that property? Especially where such appears to be the intention of the testator by the use of the words, as long as she shall live." Piatt v. Sinton et al., 37 Ohio St., 353. As to what will pass fee. 6 Ohio St., 481.

And the rule of law is, that when there is nothing in a devise from which a fee can be raised by implication, the devise takes only a life estate. Jackson v. Embler, 14 John's 198; Witherspoon v. Dunlap, 1 McCord, 546; Gray v. Parker, 4 Watts, R. S., 17; Jackson v. Wells, 9 John's, 222; Wheaton v. Andres, 23 Wend., 452.

And this is the rule in Ohio. Gilpin v. Williams et al., 17 Ohio St., 396; Gilpin and wife v. Williams, 25 Ohio St., 283; Bashere v. McKinzie, 8 O. C. C., 682; 3 C. D., 679; 30. C. C., 152; 2 C. D., 87; Hulse v. Hulse, 1 Cir. Ct. Rep., 362; 1 C. D., 202.

Mathews et al. v. Krisher et al.

Affirmed by the Supreme Court of Ohio, 20 W. L. Bull., 353; Davis et al. v. Corwin, et al., 25 Ohio St., 675; Colston v. Bishop, 1 C. C., 460; Hamilton county, 1 C. D., 257.

In construing wills it is a universal rule that they are to be expounded favorable and according to the intention of the devisor. When this intention can be ascertained it shall prevail however defectively it may be expressed. Deckers Exrs. v. Deckers Exrs., 3 Ohio, 157.

The cardinal rule in the construction of a will is that it must be so construed as to carry into the effect, the meaning and intent as expressed in the instrument unless there be some statutory or technical rule preventing it. Shaw v. Howard, 18 Ohio St., 227; Bane v. Wick, 19 Ohio, 328.

The one having the next subsequent expectant estate or interest is the heir in this case appointed by statute. The interests of the widow being limited by the will. Jones v. Loyd, 33 Ohio St., 572; Lathrop et al. v. Young et al., 25 Ohio St., 463; 37 Ohio St., 468.

In the construction of a will the intention of the testator must govern in all cases and the whole will must be construed together; the words and language used in the will; what the testator has said; his surroundings; the objects of his bounty, etc., may be taken into consideration. The intent governs no matter how defectively expressed.

A will is a picture of a man's kind. Brasher v. Marsh, 15 Ohio St., 108; Starlings Exrs. v. Price, 16 Ohio St., 29. Redfield on Wills, 2 Vol., page 409; Carter v. Reddish et al., 32 Ohio St. 1; Stokes v. Stokes, 12 Bull., 135; Clark v. Linch, 46 Barb., 68.

So the plaintiffs contend in the case at bar must appear from the will that the testator intended the

Mathews et al. v. Krisher et al.

widow to have more else she can only hold her life estate.

The intention of the testator is to be gathered from the phraseology of the will itself and to arrive at this intention it is necessary to look into the entire instrument. Edwards v. Rainers Exrs., 17 Ohio St., 597; Williams v. Veach, 17 Ohio St., 171; Beckwith v. Moore, 14 Ohio St., 121: Bowen v. Bowen, 34 Ohio St., 180; Hibbs v. Insurance Co., 40 Ohio St., 556; Williams Lessees v. Veach, 17 Ohio St., 171; King v. Beach, 15 Ohio St., 550.

A gift to a wife for and during her natural life to have and to hold and dispose of as she may choose without any provision as to the remainder created only a life estate. 68 Ind., 483; 53 Ind., 267.

And the same is true where she is given power to dispose of it at her pleasure, at her death. 47 Ind., 425; American Report, 709; 43 Ind., 310; 83 Ky., 333; 15 B. Mon., 383.

"The balance of my estate I wholly leave to my wife and to be disposed of by her and divided among my children at her discretion" was held to create a life estate only in the wife. 1 Met., 677; 21 Ohio St., 527; 23 Ohio St., 198.

When the life estate created by the will and the fee begins (by descent) in the same person at the same instant there is no merger; nor take place when there is reason for keeping it separate. Cresfield v. Storr, 36 Maryland, 480, vol., 11; Phelps Exrs. v. Pond, 23 N. Y. Ct. of Appeals, Smith 9, page 62; Areson v. Areson, 3 Den., 458 rev'g, 5 Hill, 410; Vanderwerker v. Vanderwerker, 7 Barb., 221; Hawley v. James, 16 Wend., 61.

Plaintiffs further contend, that by said election "in pais" the widow elected to take the provisions of the will with its limitations in addi

Mathews et al. v. Krisher et al.

tion to her statutory dower; and those claiming under her are estopped from denying her election to take under the will with its limitations. Baxter, Admr., etc., v. Bower, et al., 19 Ohio St., 490; Thompson v. Hoop, 6 Ohio St., 480; Stockton v. Wooley et al., 20 Ohio St., 184; Fritz v. Fritz, 16 Ohio St., 218; Carder v. Commissioners, 16 Ohio St.

Remainder men owning no interest in life estate, cannot maintain partition. Elrod v. Bass, 13 Bulletin, 463; 1 C. C. R., 38; 1 Circ. Dec., 23.

And remainder men must be in possession or entitled to immediate possession, which could not exist so long as this estate for years was in existence, consequently an action for partition would not lie. Hence the motion for leave to file petition was overruled. Fabler v. Wiseman, 2 Ohio St., 207; Davison v. Wolf, 9 Ohio, 73; Morgan v. Staley. 11 Ohio, 389.

So that no question of law could have been decided affecting the case at bar or the rights of these plaintiffs. The plaintiffs not being in possession, nor having the immediate right to possession could not maintain an action for partition.

Brief of Henry J. May, for Jennie M. Krisher, defendant in error.

We do not deem it necessary to submit a long brief in this case, for the one question presented is so simple and has been so well settled, that it would be presumptious for us to do so.

The petition is silent as to whether the real estate claimed by the plaintiff, was an estate by purchase or otherwise, so that the court will have to make a guess and you are as liable to guess wrong as right, hence construing the petition most