CONSTRUCTION^ WILL WITH REFERENCE TO AFTER ACQUIRED PROPERTY.

Court of Appeals for Pickaway County.

[Judges of the Second Appellate District sitting in the place of Judges Sayre, Walters and Middleton.]

#### Jerome Blacker v. George *W.*Litten et al.

Decided, December 6, 1918.

*Wills*— Testatrix *Inherits Property After Executing Her Will*— Inten*tion Manifested to Dispose of all the Property of Which She Died Possessed*— Devise *in Full of all Interest Does Not Bar Participation in a Lapsed Estate.*

1. A devise in a will to a daughter “to be her full share and interest in all my estate” does not bar suck devisee from her share of property not disposed of by the will.

2. This construction is not affected by the fact that the property in controversy had been disposed of by a legacy which had lapsed by reason of the death of the legatee in the lifetime of the testator.

*G. A. Leist*and *Barton Walters,*for plaintiff.

*G. W. Morrison*and *I. F. Snyder,*contra.

Allread, J.

This case involves a construction of the will of Margaret Blacker in respect to after-acquired real estate.

It appears that the will was executed on November 5, 1890. At the time of the execution the testatrix owned a farm of which she died seized. At the date of the execution of the will her husband Jefferson T. Blacker owned one-twentieth thereof, having been acquired by descent, and the nineteen-twentieths thereof by purchase.

'Subsequent to the making of the will Jefferson T. Blacker died intestate and his estate descended to Margaret Blacker, who took a life estate in the one-twentieth and a fee simple in the nineteen-twentieths. Subsequently Margaret Blacker died seized of the fee simple estate in the nineteen-twentieths of said *424real 'estate in addition to the farm owned by her at the date of the will.

It is contended by the plaintiff, a brother of Jefferson T. Blacker, that the nineteen-twentieths of the real estate acquired by purchase and owned by Jefferson T. Blacker at the time of his death, did not pass under the will of Margaret Blacker but descended upon her death as intestate property.

It is conceded that under the common law after-acquired real estate did .not pass under a will and the following statute govern in this state.

> “Any estate, right or interest in lands' or personal estate or orther property acquired by the testator after making his will, shall pass thereby, as if held or possessed at the time it was made, if such manifestly appears by the will to have been his intention.” General Code, Section 10579.

. The defendants claim under the seventh and eighth clauses of Item 3. These clauses are as follows:

> ‘ ‘ I give and bequeath to my brother George W. Litten should he survive my said husband Jefferson T. Blacker all my real estate during the term of his natural life.

> “I give and bequeath to the children of my brother George W. Litten after the death of my said beloved husband and after the death of my said brother George "W. Litten all the real estate of which I died seized and to them and their heirs and assigns forever to be divided equally among them share and share alike.”

Under the general scheme of the will, after providing for the payment of just debts and funeral expenses, the testatrix devised to her husband Jefferson T. Blacker “all the real estate of which I may die seized during the term of his natural life.” In Item 3 the testatrix bequeathed to his children if any should be born and survive “all the residue of my property both real and personal, after the payment of my just debts and after the death of my said husband” in fee simple. The testatrix then provides that if he should have no surviving child or children “then I devise my said property as follows.”

*425There are several clauses under this item providing for specific devises. The fifth clause gives to the husband “All the rest and residue of my personal property of which -I may die seized after the payment of debts and funeral expenses,” and excepting specific devises. The sixth clause provides for a monument and the ninth clause provides for a remainder in the event of the death of George W. Litten’s children without issue. The arguments *pro*and *con*rest largely upon the intention “manifestly” appearing in the concluding clause of Section 10579, General Code. It is contended by plaintiff that the intention to include after-acquired real estate and particularly the real estate acquired by her from her husband does not manifestly appear from the will of Margaret Blacker.

Coming to clauses seven and eight under which defendants claim, the life estate of' George "VV. Litten is created expressly “in all my real estate.” The remainder to the children of George W. Litten is expressly given “in all the real estate of which I die seized.” If we confine our construction of the will to the express language used we would have no difficulty in holding that an estate was created by clause eight in favor of the children of George W. Litten in “all the real estate of the testatrix of which she died seized.” This would include *ex termini*the after-acquired estate of the testatrix. The life estate of George W. Litten which is created under Item 7 in “all my real estate” is less conclusive than Item 8 creating the remainder.

In passing it may be said that even these words “all my real estate” is sufficient under the adjudications of our Supreme Court and the weight of authority in the lower courts to carry after-acquired real estate. The case of *Pruden*v. *Pruden,*14 O. S., 251, is a leading case and has never been criticized nor questioned by any subsequent decision of the 'Supreme Court. In that case the devise to the wife for life was of all my moneys, credits, right and choses in action, personal and real estate and property. Under this general language in connection with the general scheme of the will it was held that after-acquired property passed.

*426Judge Ranney in one of his characteristic opinions after referring to the common law and the enabling statute says:

> “Indeed, every line of this will looks to his death, and the situation of his property at that time, as the starting point in his dispositions. It is then that his debts are to be paid and it is then that his wife is to take, either for life or otherwise, all the residue of his ‘personal and real estate and property’ of every description; or, if she is not then living that it is all to go to his heirs, as though the ‘will had not been made.’ ”

These are the features of the Pruden will upon which Judge Ranney bases the conclusion that after-acquired property passes. All the features of the Pruden will are found in the Blacker will under consideration with the important addition that many devises expressly include “all the real estate of which I may die seized.” Devises containing less conclusive description are so entwined with the others as to make it clear that the same estate was intended throughout, and that the various terms of description were used interchangeably. In connection with the general scheme of distribution and the descriptive terms employed it was the clear intention of the testatrix to dispose of her entire estate at the time of her death. The case of *Wright*v. *Masters,*81 O. S., 304, is not in conflict with the Pruden case. There the significant controlling fact was, as stated in the opinion, “the property therein devised by Item 1 to Mary Mlasters during her life is definitely designated and specifically described, and there is in the provisions of said will no hint or suggestion anywhere of a purpose on the part of the testator to give her more' than the property thus specifically described. ’ ’

The rule 'established in the Pruden case, that after-acquired property passes under general description of the testator’s property has been followed and applied to various wills in the following cases: *Lee*v. *Scott,*5 C.C.(N.S.), 369; *Newton*v. *McKinstry,*16 C.C.(N.S.), 219; *Strock*v. *Strock,*26 C.C. (N. S.), 561.

See opinion of Judge Schauck, *Farrar*v. *Fallestine,*4 C. C., 235.

*427It is contended, however, that it does not manifestly appear from Margaret Blacker’s will that she intended that the particular estate received by inheritance subsequent to the making of the will was intended to be included in her will. It is contended that the testatrix contemplated that her husband would survive her and take the life estarte provided for in Item 2 and that the estates created in favor of George "W. Litten and his children are dependent upon the idea of the survivorship of the husband. In this connection counsel cite the case of *Lepley*v. *Smith,*13 C. C., 189, and rely upon the somewhat analogous provisions of that will and the argument of the majority of the court in the opinion.

The Lepley case involved a devise of “all my property both real and personal, moneys and affects.” It is difficult to harmonize that decision with the Pruden case, the case of *Johnson*v. *Johnson,*51 O. S., 446, and the circuit court cases in which general descriptions of that character were involved. Nevertheless we think that the decision in the Lepley case should not be extended to a case like the present where thq intention to include subsequently acquired property is much more clearly and definitely expressed.

It is true that the testatrix in the case at bar may have considered it probable that her husband would survive her and with that contingency in view made provision for him and made other provisions in favor of her brother dependent upon the latter’s survivorship.

It appears that the will of Margaret Blacker was made twenty-five years prior to her death. No evidence is offered to show that the testatrix was moribund or *in extremis.*It is a matter of common, if not universal, knowledge that there is no certainty of life and while the testatrix may have considered the probabilities of survivorship in favor of the husband, she must have been fully aware of the possibility that her husband might be the first called. She is presumed 'to have known the laws of nature and to have contemplated such possibility as the husband’s prior death and a subsequent acquisition of his property by descent or deed. The testatrix evi*428dently intended by the words employed in the will to dispose of the estate owned by her at her death. The fact that she might subsequently acquire property even if not expected at the time the will was executed does not create an exception from the express terms of the devise. No one can know in advance what property may be subsequently acquired. 'Where a will clearly shows an intention to dispose of after-acquired property, it is not important that the testator did not foresee or judge the sourse and nature of the property. *Farrar*v. *Fallenstine, supra.*

It is urged that Item 3 should be limited to property which could have been taken by the husband, and that the term “said property” in Item 3 refers to property which the husband could have taken, and limits the character of the property carried in the subsequent clauses.

The force of this argument is met by the frequent, repetition in the subsequent clauses in words of description, making it clear that she intended to dispose of all her estate of which she might die seized.

We have reached the conclusion that it is manifiest from the terms of -the will in controversy that the testatrix intended to dispose of all the real and personal property which she owned at the time of her death, and that George W. Litten took a life estate and his children the remainder in fee in the real estate in contraversy.

Demurrer'to the second cause of action sustained.

Kunkel, J., and Fernedins, J., concur.