Democratic Northwest and Henry County news. [volume] (Napoleon, O. [Ohio]) 1894-1905, 1895-05-02
ToLRno. O.. April'27. 1sp5.

~ 49, @NtNH
Mr.. EDIToR:-In the issue of the
NORTHWEST, bearing date of April
25th, 1896, appears the following
question:
"a man at his death having a
daughter in England and a son in
California, willed $65, 10000 to them
as follows: II the daughter returned
and not the son, then the widow
should have of the estate, and il the
son, returned and not the daughter,
then the widow should receive but
/ the estate. They both returned,
how much according to the will,
shopld each receivedf'
t. Questions far less confusing than
theron presented have been the
cause of long litigation, and courts
have been taxed to solve similar
problems, bnt as no two things were
ever alike all cases have different ele-
ments, and human affairs, even
though the law be the same, are pre-
sented to us with the same different
phases as the small bits of colored
glass in a kaleidoscope.
The Supreme Court of Ohio, in the
cases.of Carter VS. Reddish ct al, re-
ported in volume 80, Ohio State Re-
ports, says:
s'fpthe construction of a will it is
well l,settled as the law of this State
| that the intention of the testator, as
gathered from the whole will, must
control, when such intention is not In
conflict with the law or against pub
lie policy"
Words in will are to be under
stood according to their ordinary,
natural and legal Specification, unless
it is manifest, from the context OF
from other provisions in the will,
that the testator has used them in q
different sense, and unless the sense
in which they were used is clearly
apparent"
1t is very readily seen that the divi-
sion of the estate depended on some
thing that should happen. There
was a contingency, condition be-
tween the death of the man and the
vesting of the shares in the legatees
That condition was, that one child
should return and the other not. Both
of them returned. Neither condition
was fulfilled. They indeed cancel one
another.
In the case ofDougherty VS. Dough
erty, reported in Volume A, Metcalfe
! kentucky Reports 25, a man left 6
will stating that he intended to star
for the far west and if he should moi
return alive all of his property botI
personal and real should go to Ger
tain devisee named in the will The
author of the will made the contem
plated trip and came back alive. He
died shortly after his return and the
will was presented for probate. The
court held that the said will should
not be recognized as the last will anl
testament of the deceased. The con
| ktingency, the condition, the even
which must have happened before
any estate could vest was defeated
1t annulled that portion of the will
The same doctrine is followed in tn,
! Todd's will, found reported in
Watts g. Sargts, Supreme Court o
Pennsylvania Reports, page 145, ant
in the case of Maxwell's will, 3 Ken
lucky, 101. In the latter named cas-,
the testator was a boatman on tn
Ohio River, and being about to max
an extensive trip, made a will say
ing, ''If l do not return alive In!
property shall be divided as follows
etc." He returned, and shortly al
forwards died. The court in thi
case held the will to have beel
nollified by his return, as the condi
tion, the contingency, that gave tn
very life to the probability of the in
heritance, was swept away.
IJarman on wills section 25, says
"a will may be made SO as to take ei
fleet only on a contingency, and if tn
contingency does not happenth wi
cannot be admitted to probate
and where the will in its terms
: clearly contingent and the contiI
gency fails, the will cannot operat
, so as to pass the title to real or pei
sonal THE will is nullity, and tn
heirs and devisees must take accord
ing to law.
The law of Ohio governing the d.
! scent of personal property, is foun
! in the revised Statutes of Ohio, SCI
l ton 4175, which reads substantial
1 as follows: when a man dies with
$ out will and leaves a widow an
children, the widow shall be entitle
to one-half of the first $4,000 and t
: one-third of the remainder of the PEE
8 sonal property subject to distribl
t tion." That law governs this cas-
9 and not saying anything about Pr,
y bate costs and expenses of admin
{ tration, their respective sheres woul
g be. The wife, $2206O.OO; to the Sol
! $21S60 90; to the daughter, $21860.0
Very respectfully submitted,
8 EDWARD j. DURBIN.