Summary
In Hamilton, if the court had interpreted "survivors" as children of original legatees, the distribution could have been fractionalized further.
Summary of this case from Polen v. BakerOpinion
No. 34688
Decided June 13, 1956.
Wills — Construction — Bequest to named beneficiaries "or their survivors" — "Survivors" relates to survivors of class named — Not to survivors of persons constituting such class, when.
APPEAL from the Court of Appeals for Franklin County.
This action was instituted in the Probate Court by the filing of a petition for the construction of a will, especially item four thereof which provides:
"If my wife should predecease me, should remarry, or at her death after my decease, I give, devise and bequeath all of my property of any kind, nature and description, then remaining, of which I may own or have the right to dispose of at the time of my decease, to my three (3) children, Carl, Emma and Muriel Pettifor, or their survivors, absolutely and in fee simple, equally, share and share alike."
The testator left surviving him his son Carl, daughter Emma, and grandson Arthur Jenny, Jr., appellant herein, the son of testator's daughter Muriel, who predeceased testator, as did his wife.
Appellant contends that he should share equally with the surviving son and daughter of testator.
The Probate Court held that appellant is not entitled to share in the estate.
The Court of Appeals, on appeal, affirmed the judgment of the Probate Court.
The allowance of a motion to certify the record brings the cause to this court for review.
Mr. Earl L. Hamilton, for appellee Donald M. Hamilton, executor.
Mr. O.H. Roth, for appellee Carl Leon Pettifor.
Mr. Warren E. Bigony, for appellee Emma Pettifor Gleason.
Messrs. Morgan, Lombardo De Victor, for appellant.
The question presented is whether the term, "survivors," as used in item four of the will above quoted, relates to the survivors of the members of the class enumerated in item four, or to the survivors of the individual persons constituting that class.
This court is of the opinion that the term, "survivors," as used in item four relates to the survivors of the class enumerated therein, and that appellant is not entitled to share in the estate. The judgment of the Court of Appeals is affirmed on authority of Sinton v. Boyd, 19 Ohio St. 30, 2 Am. Rep., 369.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.