Opinion
No. 28782
Decided July 22, 1942.
Wills — Construction — Devise to designated beneficiaries equally — Share of beneficiary dying without issue devised to other beneficiaries — Succession determined by date of death of beneficiary, when — Parol evidence inadmissible where gift made in unambiguous language.
1. When a testator wills a specified part of his property equally to designated beneficiaries and provides that in the event of the death of either without issue that one's share shall go to the others, the phrase "in the event of the death of either without issue" has reference to the time of the death of the beneficiary, unless a contrary intention on the part of the testator is plainly apparent. ( Briggs v. Hopkins et al., Exrs., 103 Ohio St. 321, and Ohio National Bank, Gdn., v. Harris, 126 Ohio St. 360, approved and followed.)
2. When a gift is made by will in unambiguous language, which by legal construction has been accorded a definite and settled meaning, parol evidence is not admissible to show that the language used does not express the testator's true intent.
APPEAL from the Court of Appeals of Cuyahoga county.
Anna C. Minch, a well-to-do widow, of the city of Cleveland, died testate on February 3, 1905, at an advanced age. She was the mother of three children, Peter J. Minch, who died in 1892, Catherine Hassenflue, who died in 1875, and Sophia F. Steinbrenner, who died in 1933.
In 1900 Mrs. Minch executed her will. She then had fourteen grandchildren and several great grandchildren. Anna S. Neff, Mary Steinbrenner, John W. Hassenflue, the appellants herein, and Alice M. Dreher were children of Catherine Hassenflue, daughter of the testatrix.
In her last will, after making certain bequests and devises, Anna C. Minch directed that "all the rest and residue" of her estate should be divided into twelfths and distributed as follows:
(a) One-twelfth, less $3000, to Sophia Steinbrenner and her successors, in trust, the income therefrom and so much of the principal as may be deemed proper by the trustee, to be "expended for the maintenance and advantage" of testatrix's grandson, George H. Minch, during his lifetime and of his wife and any child, should he marry. Upon the death of George, any amount remaining to be "divided equally to any wife or child or children of my said grandson surviving him," and if there be no surviving wife or children, to his "legal heirs."
(b) One-twelfth, less $15,000, to Sophia Steinbrenner and her successors, in trust, for testatrix's grandson, Philip J. Minch, on the same terms and conditions as those relating to George H. Minch.
(c) Four-twelfths to testatrix's daughter, Sophia F. Steinbrenner, absolutely and without restrictions.
(d) Four-twelfths (this being the part of the will in controversy here) to "John W. Hassenflue, Mrs. Anna S. Neff, Mrs. Mary E. Steinbrenner and Mrs. Alice M. Dreher, children of my deceased daughter Catherine Hassenflue to each of them equally one of such twelfths, and in the event of the death of either without issue the interest of such one to go to the others to whom this four-twelfths part is given — that is to the children of my deceased daughter Catherine Hassenflue."
(e) Two-twelfths to testatrix's grandchildren, Anna E. Barnes and Hattie S. Davis, daughters of testatrix's deceased son, Peter J. Minch, and sisters of George H. Minch and Philip J. Minch, above mentioned, "and in the event of the death of either without issue the share of such one to go to the other to whom this part is given as above."
Alice M. Dreher, one of the children of Catherine Hassenflue, died testate in 1935, leaving a husband, William Dreher, but without ever having had issue. Shortly thereafter the present action was commenced in the Court of Common Pleas of Cuyahoga county by Mary C. Steinbrenner, Anna S. Neff and John W. Hassenflue, as plaintiffs, to recover the legacy bequeathed to their sister, Mrs. Dreher, by her grandmother. The action was equitable in nature and the prayer of the petition asked, among other things, that a trust be impressed upon certain money and securities in the hands of the defendants for the benefit of plaintiffs, that such money and securities be ordered transferred to plaintiffs and that an accounting be directed.
After the cause was at issue the court referred it to a special master commissioner, who took evidence and submitted a report containing his conclusions of fact and law. The determination of the commissioner was against the plaintiffs, his position being that Anna C. Minch intended the phrase in her will, "the death of either without issue," to be operative only during her lifetime and that consequently Alice M. Dreher took and received "an unqualified, unrestricted and absolute title to a one-twelfth interest of the estate of Anna. C. Minch."
The Common Pleas Court approved and confirmed the report of the master commissioner and entered judgment accordingly.
An appeal on questions of law and fact was perfected to the Court of Appeals, which considered the case on the transcript of testimony offered and received in the lower court, together with certain stipulations of counsel. It likewise rendered judgment against the plaintiffs. Neither of the courts below wrote an opinion.
Allowance of the motion for certification brings the case before this court on its merits.
Mr. Harry L. Deibel, Mr. John J. Tetlow and Mr. Alvin J. Pearson, for appellants.
Mr. J. Harold Read, Mr. George W. Spooner and Mr. John B. Oviatt, for appellees.
It is the contention of plaintiffs that the expression "in the event of the death of either without issue," as used by Anna C. Minch in the part of her will in controversy, must be taken in its natural and ordinary meaning, as referring to the time of the death of the particular beneficiary.
Conversely, the defendants insist that the gift became absolute upon the decease of the testatrix and that the quoted language refers only to the death of the particular beneficiary without issue prior to the demise of Anna C. Minch.
While in a number of jurisdictions the words "die without issue" have ordinarily been held to contemplate death within the lifetime of the testator (12 Words Phrases [Perm. Ed.], 411; 28 Ruling Case Law, 259, Section 231), the well-settled rule in Ohio is that "where there is a devise or bequest to one coupled with the provision that if he die without issue such property shall go to another, the words 'die without issue' are to be interpreted as referring to the. time of the death of the first taker, unless a contrary intention and purpose of the testator is clearly manifested." Briggs v. Hopkins et al., Exrs., 103 Ohio St. 321, 132 N.E. 843, citing Parish's Heirs v. Ferris, 6 Ohio St. 563, and other cases. And see, Ohio National Bank, Gdn., v. Harris, 126 Ohio St. 360, 185 N.E. 532; 41 Ohio Jurisprudence, 690, Section 575.
Is a contrary intention and purpose on the part of the testatrix, Anna C. Minch, clearly manifested here? The language of the will itself is plain. If Mrs. Minch had intended the expression "death * * * without issue" to mean the death of a grandchild without issue before her death, she could easily have employed language to convey that meaning. It was not so stated, and the words used must be read in conformity with the Ohio rule in the absence of some compelling consideration requiring a different interpretation.
Over the plaintiffs' objections, testimony was admitted tending to show that during a period of thirty years all of the grandchildren treated the property received from their grandmother's estate as belonging exclusively to them; that before the execution of the will a plan for distributing the estate with absolute equality had been evolved, recognized thereafter by everyone concerned; that Anna C. Minch while alive was liberal toward her grandchildren and made unrestricted gifts to them on various occasions; and that her relationship with her son-in-law, William Dreher, was always cordial.
We assume this testimony was received as an aid in ascertaining what Anna C. Minch really intended in drawing her will. However, the intention of a testator is to be discovered primarily from what he has actually said. To allow the natural import of unambiguous words to be varied or contradicted, or omissions supplied, by parol evidence, is not permitted. Lessee of Worman v. Teagarden, 2 Ohio St. 380, 382. And "where a gift is made in language which, by accepted legal construction, gives a certain estate or interest, parol evidence is not admissible to show that the testator intended to pass a different interest." 4 Page on Wills (Lifetime Ed.), 642, Section 1621.
Moreover, "where the language of the will has a definite meaning, as interpreted by the rules of construction, and applies, without ambiguity, to the beneficiary and property in existence, extrinsic evidence is not admissible to attempt to show that it does not express the testator's true intent." 4 Page on Wills (Lifetime Ed.), 674, Section 1627. See, also, Townsend's Exrs. v. Townsend, 25 Ohio St. 477; Foster v. Clifford, Exr., 87 Ohio St. 294,306, 101 N.E. 269, 271; Sommers v. Doersam, 115 Ohio St. 139, 152 N.E. 387.
Despite the practical difficulties and complications which may result, we are of the opinion that the judgments of the lower courts were erroneous on the merits of the case. We are further of the opinion that the plaintiffs had the right to maintain this action and that the procedural questions raised by the defendants were correctly disposed of below.
The judgment of the Court of Appeals is therefore reversed and the cause remanded to the Court of Common Pleas for further proceedings under the prayer of the petition.
Judgment reversed.
WEYGANDT, C.J., WILLIAMS, MATTHIAS and HART, JJ., concur.
TURNER, J., dissents.
BETTMAN, J., not participating.