CONSTRUCTION OF A DEVISE.

[Butler Circuit Court,

April Term, 1889.]

Swing, Cox and Smith, JJ.

#### MARY HOAGLAND ET AL. v. GEO. MARSH ET AL.

Statement of the Case.

M. had two sons, G. and S. S. was the father of eight children. M. had made provision for his son G., and being desirous of providing for S. and his children, he advanced to the two children of S. then of age, about $3,500.00 each., He then conveyed to G. as trustee, real estate of the value of about $20,000. He was 'to take immediaté possession thereof, collect the rents, pay the taxes and expenses thereof, and pay from the proceeds to S. $1,000 per year, and the residue to the grantor during his life. The deed then provided that G. was to convey to each of the said six children of S. as they respectively arrived at full age, the one equal sixth part of said real estate in fee-simple., “but should any of them die before arriving at full age, or before receiving a deed as aforesaid, without issue surviving them, the share tract that he or she would be entitled to, shall vest equally in the other heirs of S. surviving, and be conveyed by my said trustee in the manner heretofore designated; but it is understood that no conveyance shall be made by my said trustee or his successors, until the period of thirty days after, my death.” After the, execution of this deed four other children were born to S. A., - one of the six children named in the deed, died" in 1887, under age and without issue. M., the grantor, died'in 1888. On a petition filed by the trustee to obtain a construe*403tion of the deed, and the direction of the court as to whom he should convey the land, Held:

1. Heirs Construed to Mean Children

That the word "heirs” in the sentence "shall vest equally'in the other heirs óf S. surviving4” is to be construed as meaning other children oí S., and hence the one-sixth of the share of the deceased child should be conveyed to the other children, including the last four. „

'2. Children of any Deceased-Child to Take its Parent’s Share.

That on the death of A. under age, and without issue, during the life of the grantor, his 'share vested in all the surviving children.of S., and if that, if any one of them was dead, leaving issue, such issue took the share its parent would have taken. -■

3. Deed Construed as a Will.

The trust deed being in the nature of a testamentary disposition, is to be construed according to the intention, as if it were a will.

Appeal.

Smith, J

This is an action brought to obtain a construction of a deed, executed by Thomas Marsh, now deceased, on December 9, 1874, to his son, George Marsh, as trustee. The facts in the case, as substantially agreed upon, are these: .

Thomas Marsh was a man of considerable means, and had two- children -then living, viz.: George Marsh and 'Shubal J. Marsh. The latter was a man' of .intemperate habits, and was married, and had eight children, two of whom "in 1874 were of age. Thomas Marsh having made provision for his son George, was desirous of doing the same for Shubal and his children. He was the owner of a number of lots, contiguous to each other, in the city of Cincinnati, and he conveyed to each of the two children of Shubal, then of age, one of these lots, and some personal property, and the.value of the property conveyed to each of them was about $3,500. About the same time he executed the deed in question to George Marsh as trustee, the substance of which, so far as it is necessary to state it, is this: It conveyed to the trustee six of the lots owned by him, the value-of each of which was estimated to be about $3,000 to $3,500. The trustee was to take immediate possession thereof, and rent the same, pay taxes, etc., and out of the net proceeds he was to pay to Shubal Marsh, during the life of his father, .the sum of $1,000 per annum, and the remainder of the net income was to be paid to Thomas Marsh during his life. It then provided that the trustee was.to convey to each of the six children of Shubal Marsh, specifically named in the deed (and all of whom were then minors), as they respectively arrived at full age, the one equal sixth part of said real estate in fee-simple. But the deed contained this further provision — “but should any of them' die before arriving at full age, or before receiving a deed as aforesaid, without issue surviving them, the share of the tract that he or she would be entitled to, shall vest equally in the other heirs of Shubal J. Marsh surviving, and be conveyed by my said trustee "in the manner heretofore designated; but it is understood that no conveyance "shall be made by my said trustee, or his successors, until the period of .thirty days after my death.”

After the execution of this deed, the wife of Shubal J. Marsh died, and he married again, and had four children, all of whom are now, and-were living .at the death of Albert Marsh, one of the six children of Shubal mentioned in" said deed, who died in 1887 under age and without issue surviving him. The two .older children of Shubal are still living. . One or more of the children name crin the deed have died, leaving issue surviving. Thomas Marsh, .the grantor, died in 1888. and his son Shubal is still living-. -■

*404The'question-for decision is, to whom shall the trustee convey the onesixtli of said real estate, which should have been conveyed to Albert if h'e were now living. First, shall it go, to the five other persons named in the deed, Or ii dead.to their issue surviving? Or second, to the children of Shubal, other than Me five' named in the deed? Or third, to the children of Shubal still surviving, and-Me issue of any who may have died, that is, be divided into eleven parts, and each child living take one-eleventh, and the issue of any child who may have died, the one-eleventh thereof? Each of these interpretations is urged by counsel for the various parties.

The' deed being, in the nature of a testamentary provision for the children of Shubal Marsh, to take effect so far as their right to the property was concerned, on the death of the grandfather, the court was of the opinion that the same liberal. construction -should be given to the language used in the deed, as if used in' á Will', and that' the intention of the grantor was to govern, and was to be arrived at by a consideration of the language used in the instrument in the light ol the. surrounding circumstances, as disclosed by the evidence. And that the word heirs,as it is found in the sentence, which gives rise to the controversy, viz.: “shall vest equally in the other heirs of Shubal J. Marsh surviving” is to be construed as meaning children.

The majority of the court, Judge Cox announcing the decision, was of the opinion that on the death of Albert, the one-sixth- of said real estate vested in the othef Children of Shúbal J. Marsh, then surviving, an'd if any one of these had died leaving issue surviving, that such issue took the share the parent would Save taken if living. That it was evidently the intention- of Thomas Marsh, the grantor, as shown by the terms of this deed, and by the conveyances made about the same time to the two children of his son Shubal, then o,f age, to make some provisión, and substantially-an equal one, to all of the children of his son then living. And that if the provision in question had not been Inserted in the deed, the. estate conveyed to these children thereby, being a vested one, on the death of one. of them without issue, his share under the statutes of descent would have passed- tO all of the surviving brothers and sisters, whether of the whole or the naif bloO'd, and not to the survivors of those named in the deed.

That this should be so, we may conclude would naturally be the wish of the grantor. All of the children of Shubal stood in the same relation of blood to him-, whether born after or before the date of the deed — and he would not have been likely, voluntarily to have said in the deed, that the other children of his son, should in the event of the- death of one of the six under age, and without issue, be excluded from the share the law would otherwise have given to them— arid- nef construction should be placed on the instrument which would have this effect? -uiiless it is clearly required to be done. On the contrary, the language tíse'd- in the deed, taken in its usual and natural meaning, is broad enough to include ail of the children. It says, that the share of one of the six mentioned as beneficiaries in the deed, in case of his death under age and without issue surviving,- “shall vest equally in the other heirs (children), of Shubal J. Marsh, surviving,” Certainly, the two oldest and four youngest children come within these terms- as- well as the five named in the deed who still survive, and we see nothing in any other part of the deed which limits this meaning.

' Judge Swing was of the opinion, that on the death of Albert, his share vested in-the other five children of Shubal, mentioned in' the deed; or if any one of them Was- then dead leaving issue surviving, such issue took the share; of its parent, and that' the other six children took no part thereof. That it is a rule governing the construction of such instruments, that where an estate is thereby glVeri to-certain'persons, as in a case like this; to some of the children of the same rather j, rvith a provision that on the death of one of them- his share should- go to the other children of the father, that the presitntptiori is, that the- other children *405are those .named in the deed — and that this presumption can only be .overcome by clear language, and is .not done in this case.

H. Percy Smith and R. B. Wilson, attorneys for the two oldest children.

Morey, Andrews & Morey, attorneys for the ;five surviving .children .named in the deed.

J. P. Whitmore, attorney for the children of Marsh by -the second marriage.