#### Koontz *v.*Hubley, a Minor, et al.

*Wills*— Legacies *given without providing fund*— Charging *residuary estate with legacies*— Inference *that testator knew property insufficient.*

The rule of construction applicable to wills, that where legacies are given generally and no fund is provided from which they are to be paid and afterward the residue of the real and personal estate is given in one mass the legacies constitute a charge upon the whole residuary estate, is not absolute. It is to be applied only in those cases where from the terms of the will and a consideration of all the circumstances it is fairly to be inferred that at the time the will was made the testator must have realized that he had no property out of which such legacies could be paid and that satisfaction out of the residuary estate is necessary. *(Theobald*v. *Fugman,,*64 Ohio St., 473, 60 N. E„ 606, second proposition of syllabus, approved and followed.)

(No. 18301

Decided December 9, 1924.)

Error to the Court of Appeals of Hamilton county.

This was an action to construe the will of Samuel A. McCune, deceased, heard in the common *415pleas of Hamilton county, which held that the bequest in item 3 of the will of testator was a charge upon the real estate devised under item 6 of the will. The Court of Appeals held to the contrary, and the case came here on a motion to certify the record.

In lieu of any evidence in the courts below there was an agreed stipulation of facts, as follows:

“It is stipulated and agreed by and between the parties to this proceeding that in the trial of this case before the court the following facts should be taken as admitted:

“(1) That Samuel A. McCune died a resident of Hamilton county, Ohio; that he left a last will and testament, which was admitted to probate and record by the probate court of Hamilton county, Ohio; that, by the terms of said last will and testament, Henry Warren Koontz was named as executor; that he qualified as such and was the acting executor at the time this case was filed in the common pleas court of Hamilton county, Ohio.

“(2) That at the time of his death the said Samuel A. McCune did not leave sufficient personal estate to pay the valid debts left by him, the funeral expenses, costs of administration and inheritance taxes. That the same state of facts were true when this action was originally filed in the common pleas court of Hamilton county, Ohio.

“(3) That at the date of the death of said Sam uel A. McCune and, likewise, at the date of the filing of this original proceeding in said Hamilton county court of common pleas, the said Samuel A. McCune was the owner of the real estate described in the petition originally filed in this case.”

*416The will was executed October 17, 1919, and testator died in August, 1920.

•The folio-wing are the pertinent items of the will in the solution of the question:

*“Item No. 3.*To my friend Henry Warren Koontz now residing at 112 West Sixty-Fifth street, Cincinnati, Ohio, in consideration of his long and faithful services to my deceased wife and to myself extending over a period of more than twenty 120) years, I give, bequeath and devise $2,000.00 two thousand dollars, to be paid him within (6) months after my death. .Should-he die before me, then to be paid to his wife, Helen Wagoner Koontz.

“One (1) Water color picture ocean ships, etc.

“One (1) water color picture in shadow box.

“One (1) black marble clock and ornaments.

“One small German oil painting.

“One (1) engraving ‘Raphael.’

“One (1) porch chair in attic.

“One (1) graphaphone and records in attic.

“Iron stand and fixtures for making tea in dining room.

“My gold watch and chain made by James Nardin, No. 12675, and the case on my dresser in which it came to me.”

*“Item No. 6.*All the property both real and personal of every kind and description wheresoever situated which I may own at the time of my decease not heretofore devised including the property at the northeast comer of Ann street and Central avenue, Cincinnati, Ohio, which was devised to me by my deceased wife, to my grandson Samuel MoCune Hubley, a minor, now residing with *417his father at 1053 Cherokee road, Louisville, Kentucky.”

*“Item No. 8.*It is my desire and wish that my grandson Samuel McCune Hubley shall accept the Ann street property as it now stands and release any claim whatsoever against my wife’s estate and against the Daniel McLaren, Sr., estate and against any of the heirs or legatees of Daniel Mc-Laren, Sr.”

*Messrs. Powell S Smiley,*for plaintiff in error.

*Messrs. Mackoy & Mackoy*and *Messrs. Boettinger é Street,*for defendants in error.

Conn, J.

Plaintiff in error cites a well-known rule of law as decisive of the sole question presented in this case, and argues that it compels the devisee under item 6 to assume payment of the legacy sought to be given by item 3. The cited rule is this:

> “Where legacies are given generally and no funds provided from which they are to be paid and afterward the residue of the real and personal estate be given in one mass, the legacies constitute a charge upon the whole residuary estate, real as well as personal.”

This court said, in *Moon, Admr.,*v. *Stewart,*87 Ohio St., 349, 101 N. E., 344, 45 L. R. A. (N. S.), 48, Ann. Cas., 1914A, 104, that strained or artificial rules of construction are not to be so employed as to overcome the reasonable interpretation of the document itself.

This inevitably must be so, since no two wilL involve exactly the same considerations when *418reference is had to the financial condition of the testator, time elapsing between the making of the will and its time of speaking, amount of estate, character of investments, relationship, blood or otherwise, to the beneficiaries, and similar matters. If we apply to the facts at bar plaintiff in error’s cited rule precisely as it is stated, we should do what the *Moon case, supra,*admonishes should not be done.

The rule contended for is to be given consideration in connection with the important qualification that the interpreting agency is bound to consider, also, what must have been the belief of testator as regards his property holdings at the time he made his will. Otherwise, the construction would be with regard only to the actual value of the estate at the time of the probate, entirely unrelated to what testator’s belief may have been as to his property holdings. The question of whether the mass estate is to bear the burden of specific legacies is not thus to be concluded. It is to be determined from the language of the will, having regard to testator’s financial and other conditions, as he believed them to be when the document was executed.

In the absence of a showing that at the time the will in question was made testator did not have sufficient funds for the purpose of discharging item 3, the presumption in view of the circumstances disclosed here must be that he believed he had such property. If the inventory, speaking as of the date of the death of the testator, shows no property available to pay the legacies, it would not necessarily follow that the deceased had no such property when the will was made. The in*419ventory is not conclusively persuasive, and if it indicates a lack of sufficient means to pay the'legacies, the conclusion of what testator intended becomes a matter of inference from all the circumstances. This is so, because the law does not presume a person acts improvidently any more than it presumes he acts negligently; on the other hand, until the contrary appear, it is presumed every person acts rationally. Hence, unless something be shown to refute the idea that the testator himself must have realized that he did not have sufficient property to justify the giving of item 6 free and unincumbered, there being no language in this will on the subject either directly or indirectly, the court may not base an inference on an' inference and thus import into the will an additional pro-' vision.

If this will had been executed shortly prior to testator’s death, when he was ill and in such circumstances as irresistibly to justify the conclusion that he could not have increased his holdings between that date and' the date of his decease, indicating, in fact, that the will must have been made in contemplation of early death, then one might fairly conclude testator could not have believed that he then had sufficient property to pay the legacy unless it came out of what otherwise would go in the mass. *Townsend’s Ex’rs.*v. *Townsend,*25 Ohio St., 477. But this will was made many months before the decease, so that if the question of time becomes a factor, the lapse of time argues in favor of item 6.

Plaintiff in error contends, that the testator intended to charge to item 6 payment of the legacy bequeathed by item 3, because of the language *420in the will reciting that the bequest in item 3 was in consideration of certain services theretofore rendered by the legatee to the deceased wife of the testator. It must be conceded that a feeling of gratitude for such ministrations, which services perhaps might not be the basis of a cause of action, would be a sufficiently inducing motive when a person comes to the disposition of his property to make a bequest to one other than the immediate members of his family, but it has never been understood that a valuable consideration is necessary when dealing with gifts, or that such a recital is controlling in the construction of the will itself, unless, perhaps, there be a question of identity. The absence of a consideration for a gift is entirely immaterial, other conditions existing. The very lack of consideration is what in the law classifies a transaction as a gift.

Plaintiff in error also argues that the testator intended to charge the burden to item 6 because he was desirous that item 3 should be paid before the payment of any other bequest, as evidenced by the provision that the legacy should be paid within six months after the testator’s death. The logical conclusion to be drawn from this direction, in our opinion, is that the testator must have thought he had sufficient money or other quick assets to have the legacy paid promptly, since, in the ordinary course of events, there could be no closing of the estate within that period, and, there being no provision in the will to have available otherwise such moneys within the period of six months, he must have known the necessary steps in the administration of the estate, particularly as against creditors, if any, would make it injudicious for an executor *421or administrator to pay a legatee prior to the regular distribution.

Again, in view of the fact that personal property rather than real estate must first be exhausted in the payment of debts, and an administrator has no right to seek an order to sell the real estate except there be no personalty, it is unlikely that testator would have given practically all his personal property away, as he did in this case, knowing he had no money or its equivalent to take care of his desire as expressed in item 3. Especially is this true in view of the fact, as plaintiff in error has argued, that there was a valuable consideration, so to say, which led to the making of item 3.

Inasmuch as by reference to the agreed statement of facts our attention is directed to the petition, it is noted therein that the only real estate left by the decedent was realty which came to the testator through his deceased wife; hence it Would seem (if we may apply the argument of plaintiff in error as to motives) that it was the desire of the testator to make an absolute gift of the real estate in question to a member of his own family rather than to one not a member of the family, and, especially so, when, as here, it was devised to one of the blood of the ancestor from whom such real estate came.

Still again, by item 8, the testator expresses his desire that the devisee under item 6 shall accept the property so given and release any claim whatsoever the devisee may have against the estate of the testator’s wife and also against the Daniel McLaren estate. If the testator had expected the devisee under item 6 to assume the exoneration of the legacy of item 3, he certainly would have men*422tioned the matter in item 8, when, as stated, he was dealing with the considerations under which the devisee under item 6 was to accept. Having expressly set forth his wishes under which acceptance of item 6 should be taken, and being silent in that respect as regards the payment of item 3, the rule of *wtiius expressio*has direct application. And there is no longer room for implication. While the language of the testator in the instant ease is not a flat statement that he does not desire item 6 to be charged with the burden of item 3, the language he did employ, or rather the lack of adequate language requiring exoneration, renders the conclusion reasonably certain that testator did not. intend item 6 to be so charged.

Counsel do not disagree regarding the authorities applicable to this controversy because they refer to the same cases, to-wit: *Moore, Exr.,*v. *Beckwith’s Exr.,*14 Ohio St., 129; *Geiger*v. *Worth,*17 Ohio St., 564; *Townsend’s Exrs.*v. *Townsend,*25 Ohio St., 477; *Theobald*v. *Fugman,*64 Ohio St., 473, 60 N. E., 606; *Knepper*v. *Knepper,*103 Ohio St., 529, 134 N. E., 476. The rules declared by these cases are definite and certain, and whatever may be said as to the difficulty one might find in applying them where the facts might be less conclusive, there can be no question as to the way they point when construing this document.

The judgment of the Court of Appeals is affirmed.

*Judgment affirmed.*

Robinson, Jones, Matthias, Day, and Allen, JJ., concur.

Marshall, C. J.,

dissenting. I am unable to *423concur in the judgment of my associates in this case. My disagreement is not a dissent from the legal principles which have been declared, but rather a disagreement as to the application of those principles to the instant case. I could agree with everything which is stated in the opinion and the syllabus if this case was purely one of the construction of a will and if item No. 3 did not amount to the acknowledgment of a debt. Item No. 3 is a,s follows:

> “To my friend Henry Warren Koontz now residing at 112 West 65th street, Cincinnati, Ohio, in consideration of his long and faithful services to my deceased wife and to myself extending over a period of more than twenty years, I give, bequeath and devise $2,000.00, two thousand dollars, to be paid him within six (6) months after my death. Should he die before me, then to be paid to his wife, Helen Wagoner Koontz.”

This action was begun in the court of common pleas of Hamilton county to sell real estate to pay decedent’s debts *and*for construction of the will. It is to be feared that the judgment of this court in this case will prevent the payment of this debt which has been clearly acknowledged by the testator. In construing a will the instrument should be weighed and measured “from its four corners.” Any construction which defines the intention of the testator in parts thereof, which results in doing violence to another. portion which is not in clear conflict, is necessarily unsound. Inasmuch as the decision of this court leaves Henry Warren Koontz free to prosecute his claim for services and to use item No. 3 of the will as evidence and an acknowledgment of that debt, the decision of this court becomes vain and futile.