Schaefer v. Bernhardt

• Decision Date: 04 June 1907
• Docket Number: 10026
• Parties: Schaefer Et Al. v. Bernhardt Et Al.
• Court: Ohio Supreme Court

81 N.E. 640

76 Ohio St. 443

Schaefer Et Al. v. Bernhardt Et Al.

No. 10026

Supreme Court of Ohio

June 4, 1907

Devise of real estate by wife to husband - Lapses if husband dies first, when - Interpretation of Section 5971, Revised Statutes - Phrase "other relative" - Law of wills - Descent of property.

1. In the interpretation of Section 5971, Revised Statutes, to prevent the lapsing of a devise or legacy when made "to any child or other relative of the testator if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator," the phrase "other relative" should, in accordance with the maxim noscitur a sociis, be restricted to relationships of the character indicated by the associated word "child," and regarded as including those which are consanguineous, but excluding those which are affinitive merely.

2. Notwithstanding the statute, a devise of real estate by a wife to her husband will lapse if his death precedes hers although he leaves issue of a former marriage surviving the testatrix.

Catherine Schaefer intermarried with Ludwig Schaefer, a widower, and during coverture acquired certain real estate in Hamilton county, the real estate being particularly described in the petition. It has been claimed in the case by the plaintiffs in error that the husband had furnished the consideration for the purchase, and under circumstances which charged the title in her with a resulting trust in their favor. That claim however, disappears from the case in view of the findings of fact made by the circuit court. On October 9, 1899, Mrs Schaefer by valid last will and testament made the following disposition of her property: "I give and bequeath all my estate, real, personal or mixed, wherever the same may be, to my beloved husband, Ludwig Schaefer." In the year 1900 Ludwig Schaefer died leaving the plaintiffs in error, his children by a former marriage, his heirs at law. In June, 1902, Catherine Schaefer died, leaving no child, but leaving the defendants in error, who are her brother and sister, and the children of a deceased brother, her heirs at law. Notwithstanding the prior death of her said husband, she left said instrument as her last will and testament. The plaintiffs in error claimed the property as the issue of the devisee surviving the testatrix. The circuit court adjudged that the property passed to the defendants in error, the heirs at law of the testatrix, upon the view that the devisee having died before the testatrix, the devise lapsed and the subject of it passed as intestate property.

Mr. Jacob Shroder and Mr. E. C. Reemelin, for plaintiffs in error, cited and commented upon the following authorities:

McGovern v. Knox, 21 Ohio St. 547; Mannix, Assignee, v. Purcell et al., 46 Ohio St. 143; Parish, Admr., v. Rhodes et al., Wright, 339; Smithsonian Institution v. Meech, 169 U.S. 398; Cotton v. Wood, 25 Ia. 43; Katzenberger v. Fishel, 2 C. S. C. R., 368; Woolley et al. v. Paxson et al., 46 Ohio St. 307; Ward v. Bush et al., 59 N.J.Eq. 144; Ballard v. Camplin, 161 Ind. 21; White v. Agnew, 38 W. L. B., 47; Cleaver et al. v. Cleaver et al., 39 Wis. 96; Magoun v. Bank, 170 U.S. 285; Hartshorne et al. v. Ross, Admr., et al., 2 Disney, 26; Lessee of Prickett v. Parker, 3 Ohio St. 397; Turley v. Turley et al., 11 Ohio St. 181; Phillips, Exr., v. McConica, Gdn., 59 Ohio St. 3; Steele, Admr., v. Kurtz et al., 28 Ohio St. 196; Esty, Admr., v. Clark et al., 101 Mass. 36; Drew et al. v. Wakefield et al., Exrs., 54 Me. 291; Varrell v. Wendell, 20 N. H., 431; Gardner et al. v. Gardner, Exr., et al., 13 Ohio St. 431; Weston v. Weston, 38 Ohio St. 478; Life Association v. Pollard et al., 3 C. C., 578; Sections 4159, 4163 and 5971, Revised Statutes.

Mr. John C. Healy and Messrs. Powell & Smiley, for defendants in error, cited and commented upon the following authorities:

Gray v. Gray, 13 Neb. 453; 14 N.W. 390; Jencks et al. v. Alexander et al., 11 Paige, 619; Welton v. Devine, 20 Barb., 9; Scott v. Calladine et al., 79 Hun, 79, 29 N.Y.S. 630, 145 N.Y. 639, 41 N.E. 90; Wylie et al. v. Mansley, 6 Pa. Co. Ct. Rep., 205; Sweet v. Dean et al., 43 Ill.App. 650; Sunderland et al. v. Sunderland et al., 19 Ia. 325; Cairns v. Coburn, 104 Mass. 274; Alexander v. Warrance et al., 17 Mo. 228; Gilliland v. Gilliland, 96 Mo. 522, 10 S.W. 139; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Maxwell v. Maxwell et al., 109 Ill. 588; Smithsonian Institution v. Meech, 169 U.S. 393; Brown et al. v. Turner et al., 113 Mo. 27, 20 S.W. 660; Bodwell v. Nutter, 63 N. H., 446, 3 A. 421; Krauth v. Thiele et al., 45 N.J.Eq. 407, 18 A. 351; Rogers v. Murray et al., 3 Paige, 390; Hammond v. Hopkins, 143 U.S. 224; Warner v. Jackson, 7 App. Cases, 211; Rogers et al. v. Shewmaker et al., 27 Ind.App. 631; Thompson v. Stringfellow, 119 Ala. 317; Perry on Trusts, Vol. 2, Sec. 679; Black v. Black, 30 N.J.Eq. 215; Roper on Husband & Wife, *220, 221; McLure v. Lancaster, 24 S. C., 274; Story's Equity Jurisprudence, Vol. 2, Sec. 1284; Esty, Admr., v. Clark et al., 101 Mass. 36; Sackman et al. v. Campbell, Exr., 10 Wash. 533; Kimball v. Story et al., 108 Mass. 382; Keniston et al. v. Adams, 80 Me. 290; Cleaver et al. v. Cleaver et al., 39 Wis. 96; Mann et al., Exrs., v. Hyde et al., 71 Mich. 278; In re Estate of Pfeulb, 48 Cal. 643; 18 Am. & Eng. Ency. Law (2d Ed.), 756; Wisconsin Statutes, Vol. 1, Chap. 102, p. 1638; Howland v. Carson, 28 Ohio St. 625; Woerner on Administration, Sec. 939; Sec. 1, Sub. 1, 663, Maine Statutes; White v. Agnew, 38 W. L. B., 47; Phillips, Exr., v. McConica, Gdn., 59 Ohio St. 1; Upson, Admr., v. Noble et al., 35 Ohio St. 658; Quigley v. Mitchell, 41 Ohio St. 375; Section 5117, Revised Statutes of the United States; Section 5971, Revised Statutes.

SHAUCK C. J.

Counsel for the plaintiffs in error concede that the judgment of the circuit court is correct unless the lapsing of the devise to Ludwig Schaefer, in view of his death before the death of the testatrix, is averted by the provisions of Section 5971, Revised Statutes. The sole object of the statute was to prevent the lapsing of legacies and devises in the cases to which it applies, a lapse having resulted from the application to such cases of the rules of interpretation which obtained prior to the enactment of the statute. The pertinent provision of the statute is: "When a devise of real or personal estate is made to any child or other relative of the tes- tator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator, in either case such issue shall take the estate devised in the same manner as the devisee would have done, if he had survived the testator."

The admitted task of counsel for plaintiffs in error is to sustain the proposition that the word "relative" in the connection in which it occurs in this statute includes relationships which are affinitive merely as well as those which are consanguineous; at least, that within its meaning the husband must be taken to be a relative of his wife. It is said that the word is here used in its ordinary sense and that the lexicographers present definitions of the word which justify their conclusion. Certainly definitions which would justify either view may be found in the dictionaries. But in the making of laws words...