Opinion
Decided April 5, 1933.
Wills — Construction according to testator's intention — Date of execution or testator's death controls, when — Residue to living nephews and nieces — Aliquot part to heir of nephew, who predeceased testator — Statute of lapsed legacies liberally construed — Section 10581, General Code.
1. Will should be construed according to testator's intention.
2. Will may speak as of date of testator's death, or as of date of execution.
3. Where will provided that residue should be divided equally among "my nieces and nephews that are living," testator intended that nephew, who had long been his agent, should have equal share in residue, notwithstanding such nephew predeceased testator (Section 10581, General Code).
4. Statute changing common-law rule relating to lapsing of devises and legacies should be liberally construed (Section 10581, General Code).
5. Where will provided that residue should be divided equally among "my nieces and nephews that are living," sole heir of nephew, who had long been testator's agent, but predeceased him, took such nephew's aliquot part of residue (Section 10581, General Code).
ERROR: Court of Appeals for Morrow county.
Mr. T.B. Mateer and Mr. Benj. Olds, for plaintiff in error.
Mr. Paul Ashbaugh and Mr. D.B. Ulrey, for defendants in error.
John Gale died testate on February 10, 1931. On September 21, 1927, he executed his last will and testament; his nephew Reese Gale being the scrivener who wrote the will, and being the father of the plaintiff in error. After the execution of the will, and before the death of the testator, Reese Gale died, leaving the plaintiff in error, James H. Gale, his only heir at law, who is one of the administrators with the will annexed of the John Gale estate.
After disposing of some specific articles of personal property the testator made the following disposition of the balance of his estate: "I give and bequeath the remaining portions of my estate to my nieces and nephews that are living, and desire that they shall share equally."
It is the contention of the plaintiff in error, James H. Gale, that under the will in question he is entitled to the share of the estate his father would have inherited had he survived John Gale.
One of the old and well-established principles, a rule governing in the construction to be given wills, is to determine the intent of the testator; and another well-established rule is that a will is considered to speak from the date of death of the testator, and in some cases may speak from the date of the execution. At the very outset of this opinion we might ask the question: What would have been the intentions of John Gale on the day he wrote his will — supposing he had died thereafter on the same day? It seems clear to us from the will now under construction that the intention of the testator was to give Reese Gale an equal portion of his estate; and the fact that the testator's lease of life was extended to the 10th day of February, 1931, does not, in our judgment, change the intent the testator had on the day he executed his will, and further the fact that none of the nephews and nieces were named in the will does not change or alter the execution. The rule is laid down in Woolley v. Paxson, 46 Ohio St. 307, 24 N.E. 599:
"The rule as to the lapsing of devises and legacies that prevailed before the statute, defeated, in most cases, the intention of the testator."
The testator made his will with reference to the objects of his bounty, who existed at the time, and he made it as though it would take effect at the date of its execution, not apprehending that a lapse would occur in case any of the objects of his bounty should die before himself, unless some express disposition should have been made in anticipation of such event. The statute was passed to remedy such disappointments and should receive a liberal construction so as to advance the remedy and suppress the mischief. It, among other things, provides that where a devise is made to a child or other relative of the testator, who dies before the testator, the issue of such object of his bounty shall take the portion devised to such child or relative. Nothing is more just and conformable to the probable intention of the testator in every instance.
The statute above referred to, Section 10581, General Code, provides:
"When a devise of real or personal estate is made to a child or other relative of the testator, if such child or other relative was dead at the time the will was made, or dies thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised as the devisee would have done, if he had survived the testator."
The only question that can and does arise in the construction of this will is whether as a matter of fact it contains a devise of real or personal estate to Reese Gale, a nephew of the decedent, which the said Reese Gale would have taken had he survived the testator.
The contention is made by the defendants in error that the legacies herein belong to a class, and that the class was to be determined at the death of the testator, and they cite a number of authorities under the common-law rule that the class must be determined at the death of the testator, but the Supreme Court of Ohio has said in the case hereinbefore cited, Woolley v. Paxson, supra, that:
"If no change had been made by statute in the rule adopted by courts for the construction of a devise to children as a class, the construction claimed by the surviving sons must prevail."
And the court further held that:
"Under a devise to a class each member who survives the testator, would, independent of the statute, take an aliquot part of the devise as a tenant in common with the other survivors, therefore, under the statute in such case, the issue of a deceased member of the class surviving the testator must take what the deceased would have taken had he survived. Any other construction would render the statute nugatory in a large class of cases to which its provisions are by its terms directly applicable."
So having in mind in the present case that the Legislature of Ohio has adopted a statutory rule for construction in cases like the one at bar, we feel that we are called upon to determine what the intentions of John Gale were on the 21st day of September, 1927. That was the day that he executed his will, when Reese Gale, his nephew, who had transacted his business for many years past, was the scrivener who wrote the will. Did he intend on that day to include Reese Gale as a legatee? If so, the fact of Reese Gale's death preceding the death of John Gale could not and would not affect his intention, and the statute, Section 10581, General Code of Ohio, specifically provides that in cases of this character the issue of Reese Gale takes the legacy that Reese Gale would have taken had he survived the testator.
So that we find that the court below erred in the construction placed on Section 10581, the court erred in adopting the common-law rule of construction instead of following the statutory rule of construction, and that the finding and judgment of the court below is manifestly against the weight of the evidence and contrary to law.
Therefore the finding and judgment of the court below will be, and the same is hereby, reversed.
Judgment reversed.
SHERICK and MONTGOMERY, JJ., concur.