#### Barr *v.*Denney et al.

*Wills*— Technical *rules of interpretation*— Devise *to wife for life*— • *Directions to distribute property*— Among *heirs after death of wife*— Bequest *does not vest immediately*— Rights *of legal heirs.*

1. Technical rules of interpretation may be resorted to as aids to the construction of a will; but they can not control if they are in conflict with the apparent intention of the testator.

2. Where a testator devises and bequeaths the whole of his estate, real and personal, to his wife during her natural life, except certain amounts to equalize gifts among his children, and then without any express or implied legacy, except as contained in the direction to his executor to convert into personalty and distribute, makes the following dispositive clause, viz.: “After the death of my wife I desire that the whole of my property, both real and personal, he sold by my executor and after expenses are paid to distribute equally to my legal heirs,” the rule that a bequest in the form of a direction to pay, or to pay and divide at a future period vests immediately, if the payment be postponed for the convenience of the fund or estate, or merely to let in some other interest, does not apply. *Linton v. Lay*cock, 33 Ohio St., 128, distinguished. *Richey, Exr.,*v. *Johnson,*30 Ohio St., 288; *Sinton*v. *Boyd,*19 Ohio St., 30, and *Hamilton*v. *Rodgers,*38 Ohio St., 242, approved and followed.

3. In such case the direction to the executor to pay or to distribute to the testator’s “legal heirs” confers a contingent interest, which does not vest until the period of distribution; and the direction “to distribute equally to my legal heirs” is equivalent to a direction to make distribution in accordance with the . statutes providing for descent and distribution

(No. 10650

Decided February 2, 1909.)

Error to the Circuit Court of Greene • county.

James Barr died on the 7th day of October, 1879, leaving a will, in which he provided that after all his just debts were paid the whole of his estate both real and personal should go to his wife, Mary A. Barr, during her natural life, *359except certain payments to be made to certain of his children in order to make them equal with two sons who had already received a part of his estate. And he further provided that, *“after the death of my wife I desire that the whole of my property both real and personal be sold by my executor and after expenses are paid to distrib%ite equally to my legal heirs.”*About eleven years after the death of the .testator, his daughter Margaret Maud Barr, married the defendant, Henry H. Denney, and about two months after her marriage, and before the death of the widow of the testator, she died leaving no issue. The defendant, Denney, claims an eighth interest in the distribution of the fund arising from the sale of the said real and personal property. The administrator *de bonis non*with the will annexed of James Barr, deceased, began this proceeding to determine the true construction of the will and especially of the clause already quoted. The court of common pleas found that the true meaning of the will was that the legal heirs mentioned were those who constituted the legal heirs of James Barr at the period of distribution, to-wit, the death of the widow, and held, therefore, that the defendant, Henry H. Denney, was not entitled to share in the distribution of the estate. The circuit court reversed this finding and found that the true meaning of the will was that the legal heirs mentioned were those who constituted the legal heirs of James Barr at the time of his death and not at the time of the death of his widow and therefore held that Henry H. Denney, as the administrator of Margaret Denney, was entitled to an eighth of the fund to *360be distributed. This petition in error is prosecuted to reverse the finding and judgment of the circuit court and to affirm the finding and judgment of the court of common pleas.

*Messrs. Darlington & Darlington*for plaintiff in error.

The intention of the testator controls the construction of a will and the sole purpose in construing is to ascertain and carry out the intent. Technical rules of construction will be applied only when the intention of the testator can not be otherwise ascertained. *Exrs. of Decker*v. *Exrs. of Decker,*3 Ohio, 157; *Stevenson*v. *Evans,*10 Ohio St., 307; *Starling’s Exr.*v. *Price,*16 Ohio St., 29; *Townsend’s Exr.*v. *Townsend,*25 Ohio St., 477; *Linton*v. *Laycock,*33 Ohio St., 128.

So we maintain that in this case the scheme of the will intends a contingent interest. The testator provides for his children by name, and provides for his widow for her life, and then contemplating that his estate would be undisposed of at the death of his widow and that his four children might not then be alive he orders distribution to his legal heirs just as if he took his stand at the time of the death of his widow and said— “I direct the remainder .to be divided amongst my legal heirs,” in which case no words of survivor-ship would be necessary and those living then would take. *Hale*v. *Hobson,*167 Mass., 397.

To his wife he uses apt words to indicate a present gift, showing that he knew the proper words to use for such a purpose; to his heirs he uses words, which are clearly shown by Scott, J., in *361*Richey*v. *Johnson,*30 Ohio St., 288, to indicate an intention not to make a present gift with the enjoyment postponed, but to make the gift itself in the future to the unknown members of a class.

Where there are no words importing a gift other than a direction to the executors or trustees to divide or pay at a future time the legacy is contingent and does not vest until that time arrives. 30 Am. & Eng. Ency. Law (2 ed.), 771.

*Richey*v. *Johnson*was affirmed on that very proposition in *Hamilton*v. *Rodgers,*38 Ohio St., 242; *Bank & Trust Co.*v. *Darr et al.,*19 C. C., 497, 10 O. C. D., 554; 2 Rockel Probate Practice, 1069.

Of the many authorities in other states in accord with the above we cite only recent cases in Massachusetts and New York. *Eager*v. *Whitney,*163 Mass., 463; *Matter of Crane,*164 N. Y., 72; *Dougherty*v. *Thompson,*167 N. Y., 483.

The rule that where there is a direction to pay or divide and pay at a future time or on a given event, the vesting is immediate if the payment or division is postponed to let in a prior or life estate, is applied in all cases where there is a gift either in express terms or where an inference of a gift arises from the direction to pay or distribute to specific individuals; but the rule is not applied where the direction to the executor is to distribute to the legal heirs after the termination of the life estate, or in other words to distribute according to the statute of distributions. 2 Jar-man on Wills, 458; Hawkins on Construction of Wills (ed. of 1872), 234; *Bromley*v. *Wright, 7*Hare, 334; *Power*v. *Hayne,*L. R., 8 Eq., 262; *362*Parker*v. *Sowerby,*1 Drew, 488; *Salmon*v. *Green,*11 Beav., 453; *Burrell*v. *Baskerfield,*11 Beav., 534; *Leeming*v. *Sherratt, 2*Hare, 14; *Hallifax*v. *Wilson,*16 Vesey, 168; *Watson*v. *Watson,*11 Sim., 73; *Packham*v. *Gregory,*4 Hare, 396; *In re Wilson’s Trust,*14 Jur., 263; *Homer*v. *Gould,*1 Sim., N. S., 541; *Strother*v. *Dutton,*1 DeG. & J., 675; *In re Bright’s Trust,*21 Beav., 67; *McLachlan*v. *Taitt,*28 Beav., 407; *Chaffers*v. *Abell,*3 Jur., 578; *Smith*v. *Palmer, 7*Hare, 225; *In re Bennett,*3 K. & J., 280; *McClure’s Appeal, 72*Pa. St., 414.

Turning now to some of the American authorities that sustain the rule we find that they do not differ from the English authorities in the essentials that we claim; that is, the gift is a. present one, or to a specific individual or to a class or to trustees for specific beneficiaries. *Herbert’s Exrs.*v. *Port,*23 N. J. Eq., 278, and the same case in 27 N. J. Eq., 540; *Loder*v. *Hatfield,*71 *N.*Y., 92; *Birdsall*v. *Hewlett,*1 Paige, 33; *Marsh*v. *Wheeler, 2*Edw. Ch. 156; *Fuller*v. *Winthrop,*3 Allen, 51; *Shattuck, Admr.,*v. *Stedman, Exr., 2*Pick., 467.

We submit that these authorities sustain an artificial rule of construction that should not be extended beyond a case involving the same general features and should not be applied to the case at bar.

The object is not to ascertain what rule of construction shall apply, but what the testator intended. In all of the cases cited thus far in this brief there was no uncertainty as to the persons *363who were to take, while in the case at bar there is an uncertainty.

The case of *Rich*v. *Waters et al.,*22 Pick., 563, is in point.

Where there is a bequest of personalty to be divided among several at a future period, no interest vests in the legatees until the division takes place.

But there is no gift to the next of kin and no language importing such gift except in the direction to convert the real estate into money and then make distributions, and in such case the rule is settled that time is annexed to the substance of the gift and the vesting is postponed. *Comb’s Devisees*v. *Branch,*4 Dana (Ky.), 547; *Delaney*v. *McCormack et al.,*88 N. Y., 183.

The decisions in our own state that are supposed to be favorable to the other side may be classed with those we have been reviewing. *Brasher*v. *Marsh,*15 Ohio St., 103.

*Mr. M. J. Hartley,*for defendants in error.

But not alone the actual words used will be considered in arriving at the intention of the testator, but his object, ruling, motive or purpose in making the will. *Linton*v. *Laycock,*33 Ohio St., 128.

The statutes of descent and distribution provide for the descent of property and its equal distribution. Consequently the ties which connect the testator with his legatees, the affection subsisting between them, the motives which may be reasonably supposed to operate with him and influence him in the disposition of his property, are all en*364titled to consideration. *Smith*v. *Bell,*31 U. S., 68; *Jewett*v. *Jewett,*21 C. C., 278.

After the care he took to equalize two of his children by giving them $200.00 more than the others, and after directing that the proceeds be divided equally among his heirs, it is apparent that his object was to divide his estate equally among- his children after the provision for the maintenance of his wife had been accomplished. *Linton*v. *Laycock,*33 Ohio St., 136.

The word “heirs” has often been' construed to mean children when necessary to effect the testator’s purpose. *Coseby*v. *Executors,*2 Dis., 460; *King*v. *Beck,*15 Ohio, 559; *Durfee*v. *McNeil,*28 Ohio St., 238; *Hoagland*v. *Marsh,*4 C. C., 31.

It is the rule no longer that where there is no gift but by a direction to pay or divide and pay at a future time or on a given event the vesting will be postponed until after that time has arrived or that event has happened but the test is the reason for the postponement, and if that was that the property had been given to another for life, the bequest vested. *Executors*v. *State, 72*Ohio St., 454.

A bequest in the form of a direction to pay or to pay and divide at a future period, vests immediately if the payment be postponed for the convenience of the estate or to let in some other interest, as for instance a life estate to the widow of testator. *Thompson*v. *O’Dell, 22*C. C., 200; *Faulkner*v. *Clevenger,*35 W. L. B., 125, 54 Ohio St., 637; *Collier*v. *Grimesey,*36 Ohio St., 17.

*365When there is no. gift, but a direction to pay or divide and pay at a future, or on a given event, the vesting will be postponed till after that time has arrived, or that event has happened, unless from particular circumstances a contrary intention is to be collected. *Richey*v. *Johnson,*30 Ohio St., 288; *Sinton*v. *Boyd,*19 Ohio St., 30; *Hamilton*v. *Rodgers,*38 Ohio St., 242; *Faulkner*v. *Clevenger,*54 Ohio St., 637.

But in the case at bar there are the “particular circumstances” from which a contrary intention is collected, that is, that the time of payment or distribution is postponed to let in a life estate to the widow of deceased.

When such is the case it is the rule that the estate vests at the death of the testator.

The estate created has no element of contingency, nor uncertainty about it; it is to be distributed at a time certain to arrive to certain definite or designated persons. There is no condition precedent to the right to these proceeds, the postponement being the right of possession, and that these elements constitute a vested remainder from the taking effect of the will. *Weymouth*v. *Irwin,*5 N. P., 248; *Dean*v. *Nichols,*25 W. L. B., 278, 54 Ohio St., 628.

The remainder here created where there were persons in being ascertained and capable of taking at the expiration of the particular estate comes clearly within the definition of a vested remainder and in fact has no element of contingency in it. 24 Am. & Eng. Ency. Law, 393.

The law favors the immediate vesting of estates. *Thompson*v. *O’Dell,*22 C. C., 200; *Sherman*v. *Baker,*40 L. R. A., 717.

*366An estate will be presumed vested at the death of the testator under the circumstances of this case unless a contrary intent is manifest. *Bolton*v. Bank, 50 Ohio St., 290.

Davis, J.

There can be little or no contention in regard to the rules of construction which may be resorted to in the effort to ascertain the true meaning of this will.. The chief source of debate between the parties is as to which of them, and how, they may be applied to best effectuate the intention of • the testator. All agree that the testator’s intention when once ascertained must control, if the intended provision is lawful; and that such intention must be sought in the terms of the whole will. Yet it must be conceded that if the language of the will, when all of its parts have been considered, remains ambiguous, the construction must finally be determined by calling to our aid such rules of interpretation as the reasoning and experience of the courts have wrought out and established b)^ common consent as tending to the uniform administration of justice. To express these thoughts in another way, technical rules may be used as aids to interpretation but can not control if they be in conflict with the apparent intention of the testator.

The controversy in this case arises from the following clause of the will. “After the death of my wife I desire that the whole of my property both real and personal be sold by my executor and after expenses are paid to distribute equally to my legal heirs.” The contention on the part of the defendant in error, Denney, is that the -bequest *367to the legal heirs of the testator vested at the death of the testator. On the part of the plaintiff m error it is insisted that the bequest is future and contingent and that it did not vest until the time for distribution.

The testator had in contemplation all of his property and all of his family when he made this will; for his declaration is, “ will and bequeath to my wife, Mary A. Barr, the whole of my estate, both real and personal, for her use and benefit during her natural life, except as follows;” then he provides for payments to equalize the amounts received by his children. He makes no gift over, either by remainder or executory devise; but looking to the future, he says, “After the death of my wife I desire that the whole of my property, both real and personal, be sold by my executor and after expenses are paid to distribute equally to my legal heirs.” There is nothing further in the will to explain or qualify this clause. Although he was careful to equalize advancements among his children and named several -of them, lie makes no devise or bequest specifically to any of them nor to all as a class, but requires that his executor, after the termination of the life estate, shall convert the whole estate into personalty, and after expenses are paid, shall distribute equally to his legal heirs. The fund cannot be created, nor the extent of the interest in it be determined until the life estate has terminated, the property converted and the expenses paid. This will was made when death was imminent. The testator died in less than three weeks afterward. Although he had his children in mind the moment *368before he dictated this provision, yet, looking into the indefinite future and perhaps remembering that some of them might predecease their mother —the event which actually did happen — he refrained from bequeathing the property to his children, by name or as a class, or expressly to his next of kin or heirs at law who might be such at the time of his decease, but broadly, and it would seem with a distinct and rational purpose, directed his executor “to distribute equally to my legal heirs,” an expression exactly equivalent to a direction to make distribution at the time stated according to the statute of descents and distribution. Hence the most natural interpretation of this will is that the testator bequeathed nothing after the expiration of the life estate and contented himself with the expression of his desire that the property should all be converted into personalty and then distributed equally among those who might then be his legal heirs.

This interpretation of the will is made entirely clear, we think, by further considerations from the technical point of view. We have already adverted to the fact that 'there is no gift *in praesenti*tc the testator’s heirs. If it were so the interests would be vested and would be contingent only in respect to the time of possession and enjoyment. Of such a nature is -the case of *Linton*v. *Laycock,*33 Ohio St., 128, which is so much relied upon by the defendant in error, and *Collier*v. *Grimesey,*36 Ohio St., 17. But if there is a gift over *in futuro*after the expiration of an intermediate estate, not to specified individuals or to a definite class, but to persons not ascertained or not in *369being at the time of the bequest, the legacy is con-ting'ent and does not vest until the time of distribution. 4 Kent, 207.

In *Richey, Exr.,*v. *Johnson,*30 Ohio St., 288, this court had under consideration a will in which the testator devised to his wife for her natural life the use of a farm and directed that after her death his executors should sell the farm and divide the proceeds equally between the testator’s brothers and sisters “and their heirs.” It was held that “the gift implied in the direction to divide the proceeds between the designated parties is a gift of personalty; but as the fund could not be raised until the death of the widow, and was to be divided between persons then living, the interest of the legatees therein remained contingent till that time.”

In Tennessee it was held that a devise to a widow for life and at her death to the heirs at law of the testator, creates a contingent remainder and the estate goes in fee to such persons only as at the widow’s death answer to the description of heirs at law of the testator; and the court cited with approval *Bigley*v. *Watson,*98 Tenn., 358, 359. The court said: “The chancellor treated the remainder as vested, but the Court of Chancery Appeals was of the opinion that it' was contingent. We concur in the latter view. The remainder was contingent, because the testator obviously intended the land to be divided at the death of his widow among such persons as should then sustain to him the relation of heirs at law. The remaindermen are to be ascertained not at his death, but at the death of his widow, the life ten*370ant; and they are to be such persons as would at that time be his ‘heirs at law.’ At his death, when the will took effect, those persons were ‘dubious and uncertain;’ therefore the remainder must be contingent.”

.In New York, the court of appeals held, in a case in which the testator left a large estate,- both real and personal, giving to his widow a life estate and half the income of all his property of every kind, and to his ‘legal heirs” the remainder of the income accruing during the life of his wife after the payment of all taxes, assessments and' other charges against his estate, that the words “legal heirs,” as used in the will, meant those who would take in case of intestacy and in the portions prescribed as under the statute of distributions. *Woodward,*v. *James,*115 N. Y., 346. In another case the same court, *Matter of Crane,*164 N. Y., 71, per Parker, C. J., held that where, “aside from the direction to the executors or trustees to divide and distribute the estate upon the death of the widow, there are no words importing a gift, and where the only gift is found in a direction to divide, or pay, at a future time, the gift is future not immediate; contingent and not vested.” There are many other cases of the same import, both in this country and m England. These well settled principles of law, with the considerations heretofore expressed with regard to the intention of the testator as shown in this will, would seem to conclusively establish the interpretation which we have reached.

But the counsel for the defendant in error, Denney, insists that although there may be no gift in this will except as implied from the direction to *371pay after the death of the widow and the conver-' sion of the property into personalty and the.payment of the expenses, yet that the vesting of the interest to the legatees is immediate, because the interest is postponed only as to its enjoyment in order to let in a prior life estate. And he seems to rely upon the case of *Linton*v. *Laycock,*33 Ohio St., 128, as supporting his contention. As we have already said, that case was distinctly different from the present one in that, in that case the direction to divide and distribute was a direction to divide and distribute “amongst all my children then living or their heirs *when*the youngest child is twenty-one years of age,” etc. And from that language the court held, as expressed in the fourth proposition of the syllabus, that: “A devise to one *when*he arrives at a given age — sthe intermediate estate being devised to another — vests on the death of the testator, and is not defeated by the death of the devisee before the specified age. The words of futurity importing contingency, are not necessarily inconsistent with the immediate vesting of the estate, but may be regarded as merely postponing the possession.” The court regarded the direction in the will to divide the estate among specified devisees as disclosing a gift in *praesenti,*which was to ripen into possession *“'when*the youngest child is twenty-one years of age;” and as an *aid*to that construction the court resorted to the rule that, “words of seeming condition will, if they can bear that construction, be held to have the effect of postponing the right of possession only, and not the present right to the estate.”- In the present case the words of condi*372tion will not, in our. judgment, bear such a construction nor permit the application of that rule. The doctrine of *Richey, Exr.,*v. *Johnson,*30 Ohio St., 288; *Sinton*v. *Boyd,*19 Ohio St., 30; *Hamilton*v. *Rodgers,*38 Ohio St., 242; and not that of *Linton*v. *Laycock, supra,*is applicable to and decisive of this case.

The judgment of the circuit court is reversed and that of the court of common pleas is affirmed.

*Reversed.*

Crew, C. J., Spear, Shauck and Price, JJ., concur. 1