[13 Ohio

Clark v. Clark.

CLARK ET AL. V. CLARK ET AL.

Wills - Construction-Fee simple or life estate-Devise to wife "and to her children" - Preposition "to" superfluous — Codicil – Devise in fee not lessened, when.

1. Under a will devising realty to a wife "and to her children," each takes an equal undivided portion as tenant in common. The addition of the word "to" after the word "and" is superfluous.

2. A will which devises realty in fee by clear and unequivocal language cannot be cut down by a codicil thereto in language not equally clear and certain.

(Decided July 26, 1920.)

ERROR: Court of Appeals for Clinton county.

Messrs. William H. Gilbert and Mr. W. A. Haines, for plaintiffs in error.

Mr. E. J. West and Messrs. Smith, Rogers & Smith, for defendants in error.

CUSHING, J. The action in the court below was for the partition of two tracts of land, 50 acres and 17.23 acres. The petition states that Eugene, Elsie and Thaddius H. Vandervert were the children and heirs at law of Edith Clark, deceased, that she was the daughter of Samantha J. Clark, and that Samantha J. Clark was the daughter of Josiah McKibben; that they are each entitled to an undivided one-tenth of the land described above; that Arthur Clark and Nina Deady, and the defendants in error, Atwood Clark and Alta Jones, each own an undivided one-fifth of said real estate.

Arthur Clark in his answer denied that Edith Clark was a devisee under the will of Josiah Mc

Kibben, deceased, and denied that the plaintiffs had any title or interest in said real estate. In a crosspetition he states that Josiah McKibben died testate in 1889, seized in fee of the real estate described in the petition; and that he devised the 50acre tract to Samantha J. Clark, a daughter, in fee.

Samantha Clark died April 1, 1919, testate. It is claimed she was seized in fee of both the 50-acre tract and the 17.23-acre tract. She devised all of said real estate to Arthur Clark and Nina Deady, share and share alike.

Arthur Clark in his cross-petition claimed to own and be seized in fee of an undivided half of both of said tracts of land and averred that Nina Deady was the owner of the other half. In her cross-petition Nina Deady adopts the allegations of the cross-petition of Arthur Clark and claims the same relief sought by him.

The reply to these pleadings claims that Samantha J. Clark had a life estate only in the premises and that she had no power or authority to dispose of the property by will or otherwise; that the title to this property vested according to the will and codicil of Josiah McKibben. That will in so far as it relates to Samantha J. Clark is as follows:

"I hereby give, devise and bequeath to my daughter, Samantha J. Clark, her heirs and assigns forever, Fifty acres of land I bought of Nathan Hunter, her said land to extend from the north-west to the south-east, the entire width of said Hunter land, and extend north-west for quantity. And I also give her, her heirs and assigns, for the use and benefit of the said 50 acres, a reasonable right of way through the remainder of the

said Hunter lands to the College Township Road, to be provided by the owners of the remainder of said Hunter lands, in such place as will be of most advantage to said 50 acres and the least damage to the said remainder."

This provision of the will gives Samantha J. Clark a fee in the 50 acres. The will was executed February 12, 1878. Pursuant to its provisions the children of Josiah McKibben on October 14, 1889, quitclaimed to each other any interest they had in the separate tracts of land devised. Prior to that time, on June 4, 1885, Josiah McKibben executed a codicil to his will. The part to be considered in this litigation reads as follows:

"I give devise and bequeath to my beloved children John L. McKibben Francis M. McKibben William T. McKibben Samantha J. Clark and Rosilla Johnson all the rest residue and remainder of my estate real and personal not disposed of in the foregoing will to be equally divided between them in manner as follows viz- They my said beloved children shall select two or three judicious neighbors who shall divide my said lands into five equal parts — equal in number of acres and assign to each one their particular part- and my will is that my personal property after my just debts and funeral expenses are paid shall be divided and disposed of in a similar manner as my real estate except that my beloved daughter Amanda Cast shall have an equal share of said personal property. In the division of my said lands my will is that my said son William T. McKibben shall have as part of his share a three cornered piece of land containing about one acre adjoining the lands he now owns

and the lands of Betsy Brown and lying north of the State road. Further my will is that the lands devised and bequeathed to my beloved daughters Samantha J. Clark and Rosilla Johnson shall be to them and to their children and lastly I do nominate and appoint my beloved son William T. McKibben as executor of this my last will and testament."

It will be noted that the original will disposed of specific property, but did not contain a residuary clause. The first codicil refers to the will and adds "all the rest residue and remainder of my estate real and personal not disposed of in the foregoing will to be equally divided between them in manner as follows." This is a disposition of the residue of the testator's estate, whether accumulated after the making of the will, or undisposed of by him in the will. Thus far the intention of the testator is clear.

Looking to other provisions of the codicil as throwing light on the intention of the testator it will be observed that in giving William T. McKibben a three-cornered piece of land the word "land" is used. In the same paragraph he disposes of what he terms "lands." Was that a part of the rest, residue and remainder of his estate, mentioned in the codicil, or did he intend to include with the 17.23 acres given by the codicil the 50 acres given. to Samantha J. Clark by the will? The language of the codicil is: "Further my will is that the lands devised and bequeathed to my beloved daughters Samantha J. Clark and Rosilla Johnson shall be to them and to their children."

From the use of the plural, "lands," and the language, "to them and to their children," it is argued that in so far as the devise to Samantha J. Clark is

Clark v. Clark.

[13 Ohio concerned the testator intended to include both tracts.

Considering the will and codicil together it seems clear that the use of the word "lands" by the testator referred to the land devised to Samantha J. Clark and Rosilla Johnson rather than to the two tracts given to Samantha J. Clark.

On this state of the record several questions of law are presented.

The law is that a devise by clear and unequivocal terms cannot be cut down by language not equally clear and certain. Parker et al. v. Parker's Admr. et al., 13 Ohio St., 95; 1 Jarman on Wills (6 Am. ed.), 480 (*443); Thornhill v. Hall, 2 Clark & Finn., 22; Clark, Exrx., v. Trustees of Hardwick Seminary, 3 C. C., 152, and Collins v. Collins, 40 Ohio St., 353.

It is our duty to determine from the will the intention of the testator. 1 Schouler on Wills (5 ed.), Section 466.

Our view of the contention of counsel that the word "lands" refers to the 50 acres and the 17.23 acres given to Samantha J. Clark is that the limitation in the codicil was the real and personal property not disposed of by the will, and that such limitation precludes the idea that the testator in executing the codicil had it in mind to in any way change the original bequest. The word "lands," therefore, used in the codicil, referred to the tracts therein devised to Samantha J. Clark and Rosilla Johnson, and it was not his intention to change the original bequest.

It is further argued that the use of the preposition "to" after the conjunction "and" in the phrase