#### Rebecca J. E. Townsend’s Executors *v.*Edmund B. Townsend et al.

1. In the construction of a will, the sole purpose of the court should he to ■ ascertain and carry out the intention of the testator.

2. Such intention must he ascertained from the words contained in the will. ■

3. The words contained in the will, if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear ■ from the context that they were used by the testator in some secondary sense.

4. All the parts of the will must he construed together, and effect, if pos- - sible, given to every word contained in it.

6. If a dispute arises as to the identity of any person or thing named in the - will, extrinsic facts may he resorted to, in so far as they can he made • ancillary to the right interpretation of the testator’s words, hut for no other purpose.

Appear. Reserved in the District Court of Clermont’ county.

This action was commenced in the Court of Common Pleas • of Clermont county, by Phillip B. Swing and William C.~ Mellen, as executors of Rebecca J. E. Townsend, to obtain a construction of her will, and an order for the sale of real/ estate to pay legacies. All the legatees named in the will were made defendants.

The testatrix, whose maiden name was West, intermarried.1 in 1842 with John Kugler. Kugler died intestate, on the 4th day of January, 1868, seized of a large estate of real and personal property, situate in this state, without leaving-issue or descendants of issue. Upon his death, the whole of his estate passed to and vested absolutely in his wife - relict.

Afterward, on the 18th of October, 1869, the testatrix was < married to Edmund B. Townsend.

On the 26th day of June, 1871, Mrs. Townsend executed -, the will in question, and died on the 28th of same month,. without issue. The real estáte of which she died seized-*478was the same which, she had received from her first husband, ..John Kugler, as above stated.

The following is a copy of the will:

“ I, Rebecca J. E. Townsend, of the town of Milford, Clermont Co. Ohio, do make and publish the following as •my last Will and Testament—

“ First. I Give and Bequeath to my beloved Husband, E. ,B. Townsend, the sum of fifty thousand dollars ($50,000)—

“ Second. I give and Beqeath to my good, kind and .attentive Pysician Ur. P. B. Gatch the sum of five thousand dollars ($5,000).

*“*Third. I Give and Bequeath to my Brother, Samuel R. S. West, the notes and mortgages given by him to my late husband, John Kugler, deceased, and those given by him to me in my own right.

“ Fourth. I Give and Bequeath to the children of my Nephew, Samuel A. West, and to the children of my niece, Anna M. Loyd, the sum of One thousand dollars ($1,000) to each child.

“ Fifth. I Give and Bequeath to the children of my Niece, Elizabeth D. Gatch the sum of one thousand dollars ($1,000) each.

“ Sixth. I Give and Bequeath to Josiah Drake the sum •of five thousand ($5,000) dollars.

“ Seventh. I Give and Bequeath to my Nephew Samuel A. West, and John Kugler West the sum of five thousand .($5,000) dollars — each.

“ Eighth. I Give and bequeath to my Nieces, Rebecca -S. West, Anna M. Loyd, and Harriet O. West, the sum of one thousand ($1,000) dollars each.

“ Ninth. I Give and Bequeath to each one of the children of Sarah Ogg — of Catharine Dralc, and Elizabeth Shults the sum of one thousand ($1,000) dollars to each child—

“ Tenth. I Give and Bequeath to the the children oí David Kugler and MathiasuKugler — the sum of one thousand ($1,000) dollars — except Mathias Kugler, son of David . .Kugler and John Kugler son of Mathias Kugler Sen. to *479these I Give and Bequeath the sume of two thousand five hundred ($2,500) each—

“ Eleventh. I Give and Bequeath to each child of my Niece, Rebecca Julia Frazier the sum of one thousand ($1,000) dollars.

“ Twelfth. I Give and Bequeath to Joanah Collins the ;sum of fve hundred ($500) dollars—

“ Thirteenth. I Give and Bequeath to my little name.sake, Rebecca Julia West, daughter of Samuel A. West, iny Pianno, and Jewelry Box with its contense—

“ Fourteenth. I Give and bequeath to Catharine Drake, .anrl her daughter Ada P. Drake — my silver tea set—

“ Fifteenth. I Give and Bequeath to myNephiew, Samuel A. West — my Silver Water Pitcher, two Silver Goblets •and Waiter — and my china tea set — The balance of my ■Silver marked Kugler, I desire to be distributed among the remaining members of the family as they may amicably -devise.

“ Sixteenth. I Give and Bequeath to my beloved husband E. B. Townsend — My best Bed room Set—

“ Seventeenth. I Give and Bequeath to the Methodist Episcopal Church at Milford, Clermont County, Ohio — the •sum of six thousand ($6,000) dollars — which sum shall be placed at interest by them, and the interest used shall be used by them perpetually in keeping in repair the church building — and in paying the Salery of the ministers of said •church who may be appointed from time to time by the regular constituted authorities of the M. E. Church to be -the pastors of said charge in Milfor — O—

“ Eighteenth. I Give and' Bequeath to the Orphan Assylum at Cincinnati, Ohio, under the charge of the Protestant Managers at Mt. Auburn the sum of Two thousand ($2,000) dollars—

“Nineteenth. I Give and Bequeath to the Widows’ Home at Cincinnati, Ohio, under charge of managers at Mt. Auburn, the sum of Two thousand ($2,000) dollars—

■ “ Twentieth. I Give and bequeath to the Missionary •Society of the Methodist Episcopal Church the sum of six *480thousand ($6,000) dollars — to be placed at interest — and the Interest to be by them used perpetually in the' missionary work—

“ Twenty- first. I Give and Bequeath to the Sabbath School of the Methodist Episcopal Church located in Milfrd Ohio — the sum of five hundred ($500) dollars — said sum to be controlled by the Quarterly Conference of said charge — * the and by it put at interest — and a the interest to be by it perpetually used for the beneefit of the Sabbath School.

“ Twenty-second. I Give and Bequeath to the Colored Orphan Assylum located in Cincinnati the sum of one-thousand dollars.

“ Twenty-third. I Give and Bequeath to Oakland Seminary located in Hillsboro, Highland County, Ohio the sum. of one thousand ($1,000) dollars.

“ Twenty-fourth. I . . . Give and Bequeath to the Cincinnati Anual Conferece the sum of Five thousand ($5,000) dollars — to be under the controll of the trustees of said Conference and by them put at interest — the interest to be perpetually used by them for the relief of superanuated and worn out Ministers, and widows and orphans of deceased ministers of said Anual Conference — this to be known as the ■ Kugler Bequest among all the heirs herein named —The balance of my estate shall be equally divided a

“ Twenty-fifth. I hereby nominate and appoint P. B. Swing and ¥m. C. Mellen as the Executors of this my last Will and Testament, and do hereby revoke all former wills - by me made—

“ In Tetimony Whereof I have hereto set my hand and-seal a. i>.

this 26th day of June a 1871—

Rebecca J. E. Townsend [ ]

The money legacies aggregate $188,000, and were about double in amount to the whole value of her personal estate...

*481*William*Disney, for Townsend:

I. The intention of the testator must not be assumed on conjecture. Dougl. 38; 1 Eden, 43; 3 D. & E. 85 ; *Crane*v. *Doty,*1 Ohio St. 279; 1 Jarman on Wills, 315. It must he determined by ascertaining the meaning of the words used in the will itself. Eor the rules of construction see 7 Bing. 279; *Grey*v. *Pearson,*6 H. L. Cases, 106; *Doe dem. Gwillim*v. *Gwillim,*5 Barn. & Ad. 129; *Rickman*v. *Curstairs,*5 Ib. 663; *Hopkins*v. *Hopkins,*Fer. 44; *Blackburn*v. *Slables,*2 Ves. & Bea. 370; *Attorney-General*v. *Grote,*3 Mer. 316; S. C. on Appeal, 2 Russ. & My. 699; *Towns*v. *Wentworth,*11 Moo. P. C. C. 526; *Hicks*v. *Pullitt,*3 De G. Mc. & G. 782; Wigram on Wills, Prop. 1; O’Hara’s Wigram, 60; *Mellish*v. *Mellish,*4 Ves. 45 ; *Walker*v. *Tipping,*9 Hare, 800; *Auther*v. *Auther,*13 Sim. 422; *Taylor*v. *Richardson,*2 Drew. 16; 1 Jarman (2 ed.), 420; *Sayer*v. *Sayer,*7 Hare, 377, citing *Nannock*v. *Horton,*7 Ves. 390; *Boys*v. *Williams,*2 Russ. & My. 689; *Buck*v. *Norton,*1 Bos. & Pul. 57; *Poole*v. *Poole,*3 Ib. 627; *Chelmondeley*v. *Lord*Clinton, 2 Jac. & Walk. 96; *Warde*v. *Firmin,*11 Sim. 255; *Hodgson v*. *Ambrose,*Dougl. 337; *Crooke v. De Vandes,*9 Ves. 197; 4 Ves. 50; 6 H. L. Cases, N. S. 61; 1 Redfield on Wills, 429, 430, 432, 434 (3 ed.); *Currie*v. *Murphy,*35 Miss. 473; *Tucker*v. *Seaman’s Aid Society,*7 Met. 188; 2 Redfield on Wills, 67; 37 Penn. St. 23; *Am. Bible Soc.*v. *Pratt,*9 Allen, 109; *Collins*v. *Hope,*20 Ohio, 492; *Worman*v. Teagarden, 2 Ohio St. 380; *Parish Heirs*v. *Ferris,*6 Ohio St. 563;. *Stevenson*v. *Evans,*10 Ohio St. 307; *Collier*v. *Collier,*3 Ohio-St. 69; *Gibson*v. *McNeely,*11 Ohio St. 131 ; *Edwards*v. *Fessey,*7 Jur. N. S. 282 ; Wigram on Wills, Prop. 2; *Shore v. Wilson,*9 Cl. & Ein. 525; *Bird*v. *Luckie,*8 Hare, 301.

There is no ambiguity or obscurity on the face of this will as to the intended beneficiary designated by this residuary clause.

Those *capable*of taking an inheritance through the testatrix, as provided by the statute of descents, were (1) her husband, (2) her brother, (3) her brother’s children and. *482grandchildren, and all of whom are specially named as beneficiaries in her will.

Although all- in the same line of inheritance, the nephews and nieces could not inherit, the brother living; nor could the brother inherit, the husband living.

The statute of descents máde the husband the *first*and ■only heir; and the brother could only inherit in case she survived her husband. The testatrix, of course, must be *presumed*to have known the law on this subject; but if youx honors should be led to a conclusion that the testatrix *intended*in fact to include all those *in the line of*inheritance— viz., the husband, brother, nephews and nieces, and grand nephews and nieces — your honors, acting under the accepted rules of construction, would be compelled to admit *quod voluit non dixit,*and declare that the brother and those of his blood would *not*take as residuary beneficiaries, because they do not answer the words of the will.

But the husband does answer the words, and *quod voluit dixit,*and as one he is entitled to take. Then, who else, among all the other parties to the cause, is alike described "by the words as entitled to take ? The words are “ sensible” as to him — “insensible” as to all others named in the will.

II. On the admissibility of extrinsic testimony: O’Hara’s Wigram, 110, 132; *Hiscocks*v. *Hiscocks,*5 Mees. & W. 363 ; *Miller*v. *Travis, 8*Bing. 244; *Shore*v. *Wilson,*9 Clark *&*Fin. 567; 1 Jarman on Wills, 368; 1 Redfield on Wills; 648; *Mounsey*v. *Blamire,*4 Russ. 384; *Delmare*v. *Robello,*1 Ves. Jr. 412; *Holmes*v. *Constance,*12 Ves. 269; *Drake*v. *Drake,*3 H. L. Cases, 172; *Horwood*v. *Griffith,*4 De G. Mc. & Gor. 700 ; 1 Redfield on Wills, 580 ; *Aspden Estate,*2 Wall. J., Jr, 368, 438; *Allen*v. *Allen,*18 How. 392; *Weatherhead*v. *Baskerville,*11 How. 329, 357; 2 Jarman on Wills, 348; *Hyatt*v. *Pugsley,*23 Barb. 297; *Stokely*v. *Gordon,*8 Md. 516; *Painter*v. *Painter,*18 Ohio, 247.

III. For judicial construction of the word “ heirs,’-’ see *Bailey*v. *Pugh,*3 Bro. P. C. 454; *Holloway*v. *Holloway,*5 Ves. 399; *Porter’s Appeals,*45 Penn. St. 201; 2 Redfield on *483Wills, 31, 67, 98; “heirs” construed “heir,” 2 Redfield on Wills, *56,*citing *Burchett*v. *Dardant,*Skin. 206; *Mounsey*v. *Blamire,*4 Russ. 384; *Ferguson*v. *Stuart,*14 Ohio, 140.

IV. These legacies are not a charge on the real estate. Real estate is never charged with the payment of legacies, unless the intention of the testator so to charge it is. either ■expressly declared, or fairly and satisfactorily to be inferred from the language of the will. 2 Redfield on Wills, 202, 279; *Lupton*v. *Lupton,*2 Johns. Ch. 614 and cases there cited; *Leigh*v. *Savidge,*1 McCarter, 124; *Myers*v. *Eddy,*47 Barb. 263; *Geiger*v. *Worth,*17 Ohio St. 564; *Clyde*v. *Simpson,*4 Ohio St. 461.

*George F. Pugh,*for Townsend:

Confining ourselves to the legal and *ordinary*meaning .of the words used, only Townsend, of all the claimants under the residuary clause, can be regarded as a devisee. The question in this case must be determined by the meaning of the words employed in the will. *Baddeley*v. *Leffingwell,*3 Burrow, 1541; *Smith*v. *Coffin,*2 H. Bla. 444; *Doe*v. *Garlick,*14 M. *&*Welsby, 698, 706; *Doe*v. *Gwillim,*5 B. & Ad. 122; Grey v. Pearson, 6 H. L. Cases, 61; Wigram on Wills, 106; *Warburton*v. *Loveland,*1 Hudson & Brooke, 623, 648; 2 Dow & Clark, 480; *Doe*v. *Hiscocks, 5*M. & W. 363 ; *Williams*v. *Veach,*17 Ohio, 180 ; *Painter*v. *Painter,*18 Ohio, 247, 265; *Thompson*v. *Thompson,*4 Ohio St. 333. And also, as to the admissibility of extrinsic testimony, *Ashworth*v. *Carleton,*12 Ohio St. 381; *Taylor*v. *Boggs,*20 Ohio St. 516; *Davis*v. *Boggs,*20 Ohio St. 550 ; *Brasher*v. *Marsh,*15 Ohio St. 108; *Starling*v. *Price,*16 Ohio St. 31; *Shaw*v. *Hoard,*18 Ohio St. 232; *Baxter*v. *Bowyer,*19 Ohio St. 497.

Probably, Mrs. Townsend did not know, at the time of •executing her will, who was then her heir, nor (if that be regarded as important) whether her heir was one person or a class of persons. She had no *intention*upon that subject; but she wished, and she intended, that the residue of her ■estate should pass to those persons, or that person already *484named in the will, whom the law might point out, at the time of her death, as being her heirs or heir. And here, *Edwards*v. *Rainier, 17*Ohio St. 597, seems particularly applicable. *Porter's Appeals,*45 Penn. St. 201; *Abbott*v *Bradstreet,*3 Allen, 587; *Ware*v. *Rowland,*2 Phillips, 635.

*Durbin Ward,*for the Kuglers:

[On the questions of intention and extrinsic *evidence,*che authorities quoted by Mr. Ward, are cited by counsel for Townsend. — Rep.]

I. The real estate is charged with the legacies. The will' says nothing about real estate. From the beginning to the end it treats the whole estate as one fund, and after making fifty-odd legacies, payable in *mo7t,eyy*it then bequeaths “ *the bala7ice*” — a word relating to cash accounts— to the residuary legatees. I insist that the true meaning of the will is, that the testator *intended to,*and, by the language of her will, *did,*throw her whole estate, real and' personal, and all her moneys and credits, into a common fund, and out of that fund gave numerous legacies *in money,*and then bequeathed the cash “ balance,” and thus’ authorized and required the executors to turn the whole estate into cash, and after paying the general legacies, to’ divide the remainder equally among the residuary legatees.

Even in England, in a case, like the present, the rule I claim, would be rigorously applied. *Greville*v. *Brown,*7 H. L. Cases, 688; 1 Jarman on Wills, 509-520; *Cole*v. *Turner, 4*Russ. 376; *Mirehouse*v. *Scoife,*2 Myl. & Craig, 695.

The same doctrine has been fully recognized by the courts of this country. *Lewis*v. *Darling,*16 How. 1; *Adams*v. *Brackett,*5 Met. 280; *Whitman*v. *Norton,*6 Binn. 395 ; *Lupton*v. *Lupton,*2 Johns. Ch. 614; 2 Stor. Eq., sec. 1246; *Cox v. Crokendale,*2 Beasley, 138; *Gallagher's Appeal,*48 Penn. St. 121; *Wilcox*v. *Wilcox,*13 Allen, 252; *Gardner*v. *Gardner,*3 Mass. 178; *Clyde*v. *Simpson, 4*Ohio St. 445; *Moore*v. *Beckwith,*14 Ohio St. 129 ; 1 Stor. Eq., *485sec. *566a, 566b;*1 Redfield on Wills, sec. 22, p. 279, items 15, 18.

II. In the light of the will and its surroundings, what is •the meaning of the residuary clause, “ the balance of my estate shall be equally divided among all the heirs herein ■named ? ” If the intention of the testatrix is to govern in the construction of this sentence, it is evident that she ¡supposed she had a balance to divide; that she meant to ■divide it; divide it equally; not *between*two, but among many, “ *among all*the heirs.”

*Between*applies properly to only two *parties; among*denotes a mass or collection of things, and always supposes •more than two.

If Brower and Hunt be good law, her husband was her .sole heir, and, if she died intestate, would take the property. ■She either knew this, or she did not. If she knew it, then it is inconceivable that she should have intended by the phrase “ heirs herein named,” to have designated her husband ; for she would simply have said “ my beloved husband,” instead of using the ambiguous phrase used in the ■will. If she did not know it, then it is equally impossible she should have meant her husband, for she would not have considered him her heir at all; or if she had done so, all she had to do was to name him. So, if she had supposed her father or brother to be her heir, she would not have ■called him “ heir,” but father or brother. In no view, then, could she have intended either her husband, brother, or father; nor all together, for in no view of the law could she have supposed them capable, all at once, of inheriting from ■her. If, therefore, she had any idea at all of the technical meaning of the word “ heirs,” she could not have meant either her husband or her own blood kindred, for the language is in nowise descriptive of them, or either of them. It is also a noticeable fact, that she does not say “my heirs,” but “ the heirs.” Taking, then, her language in the light of all that surrounds it, is it not the most consistent .and reasonable to say that she meant by the phrase “ *the Jieirs herein named,”*those who were the heirs of John Hug*486ler, from whom the estate came ? They were plural: no “ heir ” on the other side could be else than singular.

Casting about for a reasonable construction of the phrase,, we find it can apply only to a class of “ heirs,” if she used the word with any technical meaning, as to whom “ *division*” of the estate is predicable. And the only class we find falling into that category is that composed of the brother» and sisters of John Kugler. They were “ the heirs ” of John Kugler, and the only class of “ heirs ” who could have been in her mind if she knew the meaning of “ *heirs*” in legal technics.

III. For the judicial construction of similar words to those used in this residuary clause, the court is referred to 2 Jar. on Wills, 18; 2 Redf. on Wills, sec. 46; Dougl. 340; 6 Term, 352; 4 Ves. 329; 5 Ib. 401; 3 Br. C. C. 68; 5 East, 51; *King*v. Beck, 15 O. 562 ; 3 Ohio St. 375 ; 9 Barb. 494; 1 Jones Eq. (N. C.) 114; 1 Jones L. (N. C.) 221;. *Doe*v. *Jackman,*5 Ind. 283 ; *Bailey*v. *Patterson,*3 Rich. Eq. 156 ; *Kiser*v. *Kiser,*2 Jones Eq. (N. C.) 28; *Blair*v. *Snodgrass,*1 Sneed, 1; *Williamson*v. *Williamson,*18 B. Mon. 329 ; 1 Grant’s Cases, 60; 4 Pick. 208; 1 Denio, 165; 3 Barr, 304; 9 Md. 65; Dev. & Bal. (N. C.) Eq. 394; 1 Rop. on Leg. 88; 2 Pick. 243; 2 Hayw. 356; 1 Head (Tenn.), 411; 8 Gray, 101; 6 Jones Eq. (N. C.) 380 ; 18 How. 202; 2 Paine’s Cir. Ct. (N. Y.) 366; 3 Pet. 113; Ib. 346; Co. Lit. 26 ; 1 Pere Williams, 229 ; 2 Black, 1010 ; 5 Barn. & Cres. 48; Hobart, 33; 17 Ves. 347; 5 Term, 320; 2 Mer. 423 ; 1 Ves. & B. 422 ; 1 Sim. & Stu. 78 ; 1 Younge, 397 ; 4 Russ. 384; 5 Bing. (N. C.) 161; 7 Scott, 22 ; 1 C., M. & R. 823; 9 Jurist, 2; Ib. 269; 2 Jac. & Walk. 65-189; 4 Kent’s Com. 537; 8 H. L. Cas. 571; 4 Ib. 314; 8 Jurist, N. S. 825 ; 9 H. L. Cas. 420.

*J. S. Brunaugh,*also for the Kuglers.

*P. jF. Swing*and *T. M. Lewis,*for the Wests.

*King, Thompson*$■ *Longworth,*for the legatees.

McIlvaine, C. J.

The principal question in this ease-arises upon the residuary clause of the will, which reads a» *487follows: “ The balance of my estate shall be equally divided among all the heirs herein named.” To whom was the residuum given ?

The objects of the testatrix’s bounty named in her will may be divided into classes as follows :

1. Her husband relict — Edmund' B. Townsend.

2. Her collateral blood relatives — the Wests.

2. The blood relatives of her first husband — the Kuglers.

4. Persons who were not related to her either by blood or marriage.

5. Religious and benevolent institutions.

The controversy arises among the first three classes, each of which claims the residuum of the estate to the exclusion of all others.

Except for the purpose of ascertaining the relation by blood, marriage, or association, between the testatrix and each of the beneficiaries named in the will, the extrinsic testimony which has been offered in the case is of little or no significance. It may be assumed that a sense of duty or moral obligation, as well as love and affection, was a motive which influenced the testatrix in disposing of her property. But in determining the question before' us, her intention as to the residuum can not be ascertained from the motives which may have influenced the particular bequests made in the will, but from the words which she used in disposing of it. ‘ The sole inquiry is, whom did she mean by the words “ all the heirs herein named ?” A few well-settled rules of construction will solve this question.

1. The intention of the testatrix should be ascertained and carried out.

2. Such intention must be ascertained from the words which she used in her will.

3. The words which she used, if technical, must be taken in their technical sense, and if not technical, then in their ordinary sense, unless it appears from the context that they were used by' the testatrix in some secondary sense.

4. All the parts of the will must be construed together; *488and effect, if possible, must be given to every word contained in it.

By applying these rules, it is clear that the persons entitled under the residuary clause jnust be found among those named in other clauses of the will. Such is the effect of the words “ herein named.”

It is also clear that the testatrix intended to embrace within this clause a plurality of persons. Not simply because the word “heirs” is in the plural, but also because the gift was to “ all the heirs ” named; and further, the balance of the estate w;as to be “ divided among ” them.

The persons entitled to take under this clause must also •come within the meaning of the descriptive word “heirs.” 'This is a technical word, which, in its strict legal sense, embraces those persons named in the will, and only those upon whom the law would have cast the estate in the ■event of her death intestate.

Under our statute of descents, the whole of the estate, if ■such intestacy had occurred, would have been cast upon her surviving husband; and if the word “ heirs ” is to be taken in its strict legal meaning, there is no other person named in the will who could take any part of the residuum •of the estate. Prom the context, however, it is manifest, as ■above shown, that the testatrix did not use the word in that strict sense.

While, therefore, the strict legal sense of the word must be departed from, in order to carry out the manifest intention of the testatrix, we are not authorized by anything in the context to extend the meaning of the word so as to embrace persons who, under the law, could not in any contingency have succeeded to the estate as heirs of the deceased. 'The will can be executed, and every word contained in it fully satisfied, without giving to the word “ heirs ” such extraordinary signification. In the line of descent under the statute, next after the husband, was the brother of the testatrix, and after him other blood relatives. Many of these are named in the will, and each of them might, upon certain contingencies, have become an heir to her estate. As *489the husband relict alone does not answer the description of persons entitled to take under this clause, neither do the husband and brother. The gift is not to *both*the heirs named, nor is it to be divided *between*them, but to *all*the heirs named, and must be divided *among*them. If the word “ heirs,” in its larger sense, including all in the line of •descent, be taken as the meaning of the testatrix, then every other word in the residuary clause, according to its ordinary meaning, becomes effective in expressing. the intention of the testatrix. But in no possible event or contingency could the blood relatives of her first husband, who were not of her blood, have succeeded to this estate under our laws of descent. *Brower*v. Hunt, 18 Ohio St. 311; *Bathrop*v. *Young,*p. 451 of this volume. Hence the Kuglers must be excluded from all participation in this residuary gift. Indeed, there is no sense in which the testatrix ■could have used the word “ heirs,” except as a substitute for “legatees,” that would bring this class of persons named in the will within the intention of this clause. And if upon the whole will, and in the light of extrinsic circumstances, we were constrained to substitute “ legatees ” for ■“ heirs,” then,those legatees of the fimrth and fifth classes ■above named would be let in — to wit, persons not related to the testatrix by either blood or marriage, and all the benevolent and religious associations named in the will. For such construction or conclusion no one contends; and we think it would be alike contrary to the actual and the legal intention of the testatrix. "W e think the meaning of the will, as the law discovers it, is to divide the residuum, share and share alike, among all those persons named therein who might, under some circumstances, have stood in the relation of heirs to the testatrix.

It is also made a question in the case whether the real ■estate can be charged with the payment of the money legacies.

¥e think the testatrix intended to make the charge. The money bequests were largely in excess of the personal ■estate of the testatrix. This fact was certainly known to *490her at the time she made the will. The will was made in contemplation of approaching death. No change in the condition of property before her death was contemplated; and it was also known to her that a large surplus would remain after full-payment of all debts and legacies would be made out of the whole estate. The only disposition made of the realty was in the residuary clause, wherein the bequest was made of “the balance of my estate.” From these circumstances, we are of opinion that the residuary devisees must take the realty, subject to the payment of legacies. The executors are therefore entitled to an order for the sale of so much of the real estate described in the-petition as may be necessary for the payment of the legacies.

*Decree for plaintiffs.*

Welch, White, Rex, and Gilmore, JJ., concurred.