#### Oglesbee *v.*Miller, Executor.

*Wills*— Construction—Residuary *bequest limited to proceeds from sale of realty*— Intestate *property passes under descent and distribution statute*— Personalty *descends to husband although only life estate bequeathed, when.*

1. In a will which directs the sale of real estate and the payment of specific legacies from the proceeds thereof, followed hy the ¡provision that “all the rest and residue of my said property realized from the sale of said real estate” shall be divided among persons named, such provision 'disposes only of the proceeds of the real estate and cannot be construed as a general residuary bequest.

2. All intestate property passes by virtue of and in accordance with the statute of descent and -distribution; the course thereby prescribed can be changed only by testamentary disposition. *(Mathews*v. *Krisher,*59 Ohio St., 562, 53 N. U., 52, approved and followed.)

3. Personal property undisposed of by will -passes to the husband, where the testatrix left no children or their legal representatives, even though by provisions of the will such ¡property had been bequeathed to the husband for and during his natural lifetime, or so long as he remained unmarried.

(No. 18363

Decided December 16, 1924.)

Error to the Court of Appeals of Greene county.

This action was brought in the court of common pleas of Greene county to obtain a construction of the will of Martha Seiver Og’lesbee, and the direction of the court relative thereto. No answer was filed and no evidence was introduced upon the hearing’, and therefore all the facts before the court appear in the petition, the portion essential to a consideration of the questions presented in this case being as follows:

*427“This plaintiff further says that said Martha Seiver Oglesbee died possessed of real estate worth the sum of thirty-nine thousand four hundred ninety ($39,490) dollars, and of personal property of the value of fifteen thousand ($15,000) dollars; that she attempted to dispose of all of said property by her said will; that the debts and claims against said estate do not exceed five thousand ($5,000) dollars.

“This plaintiff, George D. Oglesbee, further says that said Martha .Seiver Oglesbee, died leaving this plaintiff, George D. Oglesbee, her widower, and, as such widower, he is interested in the said will of the said Martha Seiver Oglesbee and as such widower, he brings this suit. Following is a copy of said will:

“ ‘I, Martha Seiver Oglesbee, being of sound and disposing mind and pot under any restraint, do make and publish my last will and testament.

“ ‘Item 1. I desire all my just debts be paid out of my personal estate. V

“ ‘Item 2. I give, devise "and bequeath to my husband, George D. Oglesbee, all my property, both real and personal, to have and to hold the same for and during his natural lifetime, or so long as he l’emains my widower, with the following conditions, said husband to keep said farms in state of good cultivation and the buildings and fences in good repair, and all taxes paid and the improvements kept insured for as much at least as they shall be at my death, and said husband not to sell any timber off of said premises, but to have the right to use so much of the timber ás may be necessary to keep said farm buildings and fences *428in repair. And further conditioned that said husband shall not sell or convey away his estate therein.

“ ‘Item 3. At the death or remarriage of my said husband, I desire that the farm of 100 acres, more or less, that I received from my father, Charles Hamer, be sold by my executor and the proceeds to go to my brothers and sisters, share and share alike to each, and in case of any brother or sister dying before my said husband and without children, then said share to go to the surviving brothers and sisters, or the children of any deceased brother or sister. It being my desire to keep said farm among the Harner heirs or their children.

“ 'Item *4.*At the death or remarriage of my said husband, I desire the rest and residue of my real estate sold by my executor and out of the proceeds the following legacies paid:

“ 'To Franklin J. Harner, the sum of three thousand dollars ($3,000) and in case of his death then to his two sons, Lester and Boswell.

“ ‘To Sarah Wendall, the child we partly raised, the sum of five hundred dollars ($500).

“ ‘To Margaret Morgan Shaw, the sum of five hundred dollars ($500).

“ 'Item 5. All the rest and residue of my said property realized from the sale of my said real estate, I desire divided into two equal parts, one half to go to the following:

“ ‘To the nieces and nephews of my former husband, Mahlon H. S’eiver, share and share alike to each. The other half of said residue to go to my brothers and sisters surviving, or in case of the' death of any of said brothers and sisters then *429the children of said deceased brother or sister to take the share the parent would have taken, and in case said brothers or sisters die without issue surviving, then their share to go to my nieces and nephews.’ ” i

The testatrix died leaving no child or children or descendants of any child or children to take the personal property, and plaintiff sought direction and advice particularly as to whether he was entitled to the personal property absolutely, or only to the use thereof during his lifetime, but also asked the finding and determination of the court as to the vesting of the title to the real estate.

The case was heard upon appeal by the Court of Appeals, which court found that under item 2 of the will the plaintiff took a life estate only, or so long as he remained the widower of Martha Seiver Oglesbee, in the personal property of the testatrix, and that the plaintiff would have the right to elect to take in kind the household goods and personal effects of testatrix after payment of debts, etc.; that the court administering the estate is the proper court to determine how said property is to be handled at the time of distribution of assets for the protection of the remainder-men; that under items 4 and 5 the title to the real estate is vested in the executor for the purpose of carrying out the provisions of the will; and that under item 5 the personal property of which the testatrix died seized, upon the death or remarriage of George D. Oglesbee, becomes a part of the rest and residue, to be disposed of as provided in that item of the will.

To the portion of the judgment wherein the *430court held that item 5 makes a disposition of the personal property mentioned in item 2 of the will, and wherein it held that the testatrix did not die intestate as to the personal property, and that George D. Oglesbee as sole heir at law of the testatrix does not take said personalty by descent, the plaintiff excepted, and thereafter, upon order of this court, the cause was certified here for review and final determination.

*Mr. Robert J. Shawhcm,*and *Mr. Marcus Shoup,*for plaintiff in error.

*Mr. L. T. Marshall,*for defendant in error.

Matthias, J.

The only question presented to this court is whether the personal property owned by the testatrix at the time of her death was disposed of by her will. If it was not, it follows that under the statute of descent and distribution, there having been no children or their legal representatives, such property passes to and vests in the surviving husband. The provision of this will which it is claimed has the effect of disposing of the personal property of the testatrix is contained in item 5 and is as follows:

> “All the rest and residue of my said property realized from the sale of my said real estate, I desire divided into two equal parts [the manner of distribution of which is then directed].”

It is to be observed that by item 2 all real and personal property was given to the husband for and during his natural lifetime or so long as he remained unmarried. Item 3 directs the sale of a certain 100-acre farm, therein described, upon *431the death or remarriage of the husband, and specifically provides the manner of distribution of the proceeds. By item 4 it is directed that at the death or remarriage of the husband the executor shall sell all other real estate belonging to the testatrix and pay certain legacies, one of $3,000 and two of $500 each, and immediately following this provision is the language of item 5 above quoted. That provision makes no reference whatever to personal property, but only to the sum or proceeds realized from the sale of the real estate disposed of by virtue of the preceding item, for we have seen that the entire proceeds of the 100-acre farm had been disposed of under the provisions of item 3.

But it is claimed that there is an ambiguity, and that where there is ambiguous language in a will it must be so construed as to carry out the intention of the testator, if that can be gathered from other portions of the will, and then it is argued that other portions of the will show the desire and purpose that the husband have only the use of the personal property during his life or his widowerhood.

The whole difficulty with the application of that proposition here lies in the fact that there is no ambiguity. If item 5 read “all the rest and residue of my said property,” it would pass not only the funds realized from the sale of the real estate referred to, but all the personal property. But that is not the language used by the testatrix, and the words of limitation used by her surely cannot be disregarded, for the property she there bequeathed was only that *“realized from the sale*
      *432
      *of my said real*estateIt may be admitted that when the lifetime nse of the personal property was given to the husband in item 2, the testatrix intended later in the will to make full and final disposition thereof; but clearly she did not do so. It is an elementary principle of construction that where a testator has not disposed of his property by will, the courts cannot, under the guise of construction, make a new or corrected will for him in order to dispose of his property and avoid intestacy. And even if words of exclusion- were used they would not serve the purpose of preventing property which had not been disposed of by the terms of the will from passing under the statute of descent and distribution. The question which the court is to determine is not where the testatrix would have directed that the residue of her estate should go, but only whether by the language used in her will she did make any disposition thereof. In order to determine that by the provisions of item 5 the testatrix did bequeath her personal property, it is necessary to strike bodily from that provision of the will the very material and controlling clause, “realized from the sale of my said real estate,” or, if that be not done, to add thereto some such provision as “and all my personal property.” It is doubtful whether any language could have been used which would have more clearly limited the property bequeathed in item 5 to the proceeds of the sale of the designated real estate than that used. But even if it be admitted that some word more apt and appropriate than “property,” such as “proceeds,” or “money,” or “fund,” could have been employed, still that *433would not warrant a total disregard of the language used, when the meaning of that language is clear. The court must assume that testatrix meant what she said, and surely cannot ascribe a meaning contrary to the ordinary and usual significance of the language used. •

It is impossible to construe the provision in question as a general residuary bequest without striking therefrom language clear and easily understood, or adding some provision such as above suggested, which would have the effect of completely changing the meaning and purport of the language used. That would not be interpretation; the language is not ambiguous and therefore needs no interpretation. It would be judicial construction in the sense of making a will, or at least of adding an item disposing of property which the testatrix, intentionally or inadvertently, had not either specifically or generally bequeathed. The presumption against partial intestacy cannot have the effect of a bequest of property where none in fact was made. The question always before the mind of the court must be not what should the testator have done, but what did he do and what did he mean by the words which he actually employed. We are in no sense disregarding the rule always applicable, that the intention of the testator shall govern and that such intention shall be gathered from the entire instrument.

In this connection the language used by Judge Ranney in the early case of *Crane*v. *Executors of Doty,*1 Ohio St., 279, 282, is pertinent:

> “It is very true that our law has always allowed to every person of mature age, absolute dominion *434over all he may possess, to dispose of it by last will and testament, saving the rights of the widow and creditors, if any; and it is equally true, that where such disposition is made, the will will be construed with great liberality for the purpose of arriving at the intention of the- testator. But it is very clear that even the expressed/intention of the testator cannot be regarded in the absence of such disposition; and this arises from the very nature and office of a will, which is defined to be 'an instrument by which a person makes a disposition of his property to take effect after his decease.’ If the owner, therefore, for any reason, fails in his lifetime to designate who shall succeed to it, the law steps in at his death and supplies the omission, and oasts it upon the heir at law.”

The court went much further in that case than we are called upon to do here, for it was there held that "a testator cannot, by any words of exclusion used in his will, disinherit one of his lawful heirs, in respect to property not disposed of by his will.” The rule applicable to this case is concisely stated by Page on Wills, Section 467, as follows: "Where testator malíes specific bequests of his property, and leaves a part of the same undisposed of, such part will descend in accordance with the law of descent and distribution, irrespective of the actual intention or expectation of testator,” in support of which the following cases are cited: *Bill*v. *Payne,*62 Conn., 140, 25 A., 354; *Wilder*v. *Holland,*102 Ga., 44, 29 S. E., 134; *Andrews*v. *Harron,*59 Kan., 771, 51 P., 885; *State*v. *Holmes,*115 Mich., 456, 73 N. W., 548; *Clarkson*v. *Pell,*17 R. I., 646, 24 A., 110; *Young*v. *Kinkead’s Admrs.,*101 Ky., 252, 40*435S. W., 776, and *Mathews*v. *Krisher,*59 Ohio St., 562, 53 N. E., 52.

In the case of *Mathews*v. *Krisher,*the facts are quite similar to the case at bar in that the testator had devised all his lands to his wife “as long as she shall live,” making no further disposition thereof. It was there claimed, as here, that the terms of the will limited her interest to an estate for life notwithstanding the provisions of the statute of descent and distribution. This court held:

> “The comprehensive language in which the statute is made applicable to all cases of intestacy compels the acceptance of the rule, generally recognized, that the heir at law can be disinherited only by a devise of the property to another.” Citing *Crane*v. *Executors of Doty, supra.*

The bequest in question having disposed only of the fund to be realized from the sale of real estate, and there being no general residuary bequest, it follows that, the personal property of the testatrix not having been disposed of by her will, the absolute title thereto passes to the surviving husband by virtue of the statute of descent and distribution.

The decree of the Court of Appeals is accordingly modified, and, as so modified, affirmed.

*Judgment modified, and affirmed as modified.*

Marshall, C. J., Robinson and Jones, JJ., concur.