Briggs v. Hopkins

• Decision Date: 04 October 1921
• Docket Number: 16610
• Citation: 103 Ohio St. 321,132 N.E. 843
• Parties: Briggs Et Al. v. Hopkins Et Al., Executors Et Al.
• Court: Ohio Supreme Court

132 N.E. 843

103 Ohio St. 321

Briggs Et Al. v. Hopkins Et Al., Executors Et Al.

No. 16610

Supreme Court of Ohio

October 4, 1921

Wills- Construction - Gift over upon "dying without issue" - Date of first taker's death governs, when - Conditional or qualified fee in first taker, when - Validity of limitation over of personalty.

Where there is a devise or bequest to one coupled with the provision that if he die without issue such property shall go to another, the words "die without issue" are to be interpreted as referring to the time of the death of the first taker, unless a contrary intention and purpose of the testator is clearly manifested.

Melissa Brittain executed the will in question in this cause June 3 1893, and died February 1, 1895. The provisions of her will involved in the controversy here presented are as follows:

"Item 2. It is my will that whatever property I may own at my decease both personal and real, be given to my daughter, Mrs Edna Bowes, and I wish it to be kept separate, and apart from any other property that she may have, and if she should die without issue from her own body, then I wish the above mentioned property, to be equally divided between my brothers, Henry F. Briggs, Otis Briggs and Samuel E. Briggs and my sisters, Sophia F. Chatfield, and the children of my sister, Abigail Kinney, deceased (namely) Vernon Kinney DeWitt Kinney and Clara Kinney, are to have equal share's, of what would have been their mother's share if living, and also my sister Emily Hopkins, deceased's son Roswell Hopkins, is to have what would have been her share if living, and if any of the above named brothers or sisters, should die before myself, then their children are to have equal shares, of what would have belonged to their parent, if living.

"Item 3. If my daughter Mrs. Edna Bowes should die and leave issue from her own body, and it or they as the case might be should die without issue, then I wish the property to be divided in the same manner as described above (in case of my daughter Mrs. Edna Bowes dying without issue)."

At the time of the execution of this will Mrs. Brittain was a widow 53 years of age, and for some years had resided in the property which she owned, her daughter Edna, who was her only child, and her husband, Frank Bowes, living with her as one family. At the time of the execution of the will the daughter was pregnant and her child was born October 16, 1893. This child survived the testator, but died May 30, 1900. All the brothers and sisters mentioned in the will as living were older than she, and, though they survived her, they died prior to the death of testator"s daughter Edna.

At the time of the mother's death the daughter Edna Bowes was twenty-three years of age. The estate of the testatrix consisted almost entirely of personal property, and the daughter received from her mother's estate the sum of $9,146.26. Subsequently she obtained a divorce from Frank Bowes and married one Ulrich Steudler. No issue was born of that marriage, and she died testate and without issue surviving her March 3, 1918, leaving an estate valued at $30,000. By the terms of her will she disposed of all the property in her possession at the time of her death.

This action was brought in the court of common pleas of Medina county to obtain a construction of the terms of the will of Melissa Brittain. The court of common pleas held that Edna Bowes Steudler took an absolute title in the property in question, but subject to be determined by the event of her death without issue surviving her, and, that event having occurred, the brothers and sisters of the testator, Melissa Brittain, and their legal representatives, were entitled to the said sum of $9,146.26 from the estate of Edna Bowes Steudler. Upon proceeding in error the court of appeals reversed the common pleas, holding that under the terms of the will the daughter took an absolute indefeasible title to the property. Proceedings in error were thereupon prosecuted to this court to reverse the judgment of the court of appeals.

Mr. D. H. Tilden; Mr. Prank Heath and Mr. J. W. Seymour, for plaintiffs in error.

Mr. Frank W. Woods; Mr. Arthur Fan Epp; Mr. S. H. Tolles and Mr. P. H. Waters, for defendants in error.

MATTHIAS J.

The decision of the only question involved in this case turns upon a determination of the meaning of the phrase "if she [the daughter of testatrix] should die without issue from her own body," and upon whether this provision contem- plates the death of the daughter as occurring prior to that of the testatrix or whether the condition imposed is to be applied no matter when the daughter should die.

While the decisions of the courts of last resort in the various states and the authors of works upon the subject of wills are not in entire accord upon the proposition, yet it seems quite obvious that the rule applicable to the situation here presented has been long settled in this state. In the case of Parish's Heirs v. Ferris, 6 Ohio St. 563, the question of the rule of interpretation to be applied to a...