Opinion
No. 32689
Decided May 28, 1952.
Wills — Construction — "My heirs at law" determined as of what time — Life estate to daughter with remainder to my "heirs at law" — Statutory law applicable — Adopted child of daughter an "heir," when.
1. If the words "my heirs at law" in a testator's will are given their ordinary meaning, they will necessarily describe those who are actually the testator's heirs necessarily determined at the time of and by the law in effect at the testator's death.
2. Where, in providing for his "heirs at law" after a life interest, a testator indicates his intention that such heirs should be determined at the date of the expiration of such life interest, then the statutory law in effect at the expiration of such life interest should be applied in determining such heirs of the testator unless by the provisions of the will or surrounding circumstances a contrary intention is indicated, even though such statutory law will permit an adopted child of the testator's daughter to take and the statutory law in effect at the testator's death would not have permitted such adopted child to take and even though such adopted child was not either born or adopted until long after the testator's death.
APPEAL from the Court of Appeals for Lucas county.
This action was instituted in the Probate Court of Lucas County by the executor of, and by the trustee under, the last will and testament of Harry Tiedtke, herein referred to as testator, for advice and instructions with respect to distribution of the assets of a trust estate established by item 11 of the will of the testator.
In 1921, the testator made his will. This will reads in part:
"Item 1. I hereby direct that all of my just debts and funeral expenses be paid.
"Item 2. As an evidence of my regard for my brothers Charles Tiedtke and Ernest Tiedtke and my sisters Bertha Spross and katherine Tiedtke, I do hereby give and bequeath to each of my said brothers the sum of one hundred dollars, to my sister, Bertha Spross the sum of one thousand dollars and to my sister, Katherine Tiedtke, the sum of two thousand dollars.
"* * *
"Item 11. I hereby devise, give and bequeath all the residue of my estate real, personal and mixed, of what-so-ever description and where-so-ever situated and all life insurance, to my brothers, Charles Tiedtke and Ernest Tiedtke, to be held in trust for my daughter, Justina Margaret Tiedtke for the uses and purposes following:
"I hereby empower my said brothers, as trustees, to sell * * * and to reinvest * * * in such manner as they think to be for the interest of said trust estate.
"I hereby authorize my said brothers as such trustees to advance to my daughter, Justina Margaret Tiedtke, from time to time such sum or sums of money as in their judgment may be necessary for her support, comfort, health and happiness; and upon my said daughter, attaining the age of thirty years, my said brothers as such trustees to transfer and convey to my said daughter, Justina Margaret Tiedtke, the one half in value of said trust estate then in their hands or under their control, and upon my said daughter attaining the age of forty years then my said brothers as such trustees shall transfer and convey to my said daughter, Justina Margaret Tiedtke, all of said trust estate then remaining in their hands or under their control, to be hers absolutely.
"In case of the death of my said daughter, Justina Margaret Tiedtke, before coming into the possession of any part of said trust estate leaving no children, then such portion of said trust estate shall be divided among my heirs at law.
"Item 12. I do hereby nominate and appoint my brothers, Charles Tiedtke and Ernest Tiedtke, executors of this my last will and testament, and direct that in qualifying as such executors they be not required to give bond, and that in the settlement of said estate they be not required to file an inventory of the same. In the event that my said brothers or either of them be unable to serve as such executors, I do hereby direct that either my sisters Bertha Spross or Katherine Tiedtke, or Emmanuel Frederick, or George B. Cole be selected to discharge said trust, my desire being that the selection and appointment shall be in the order in which said persons are named above * * *."
In items 3 to 10 provision is made for legacies to employees, other individuals, and charitable organizations. The only one of these involving any substantial sum is one of $50,000 as an endowment for a church and its work.
In 1924, the testator executed a codicil to his will reading:
"Item 1: In the provision made in my said last will and testament for my daughter, Justina Tiedtke, it is my desire that she be paid only, the net income each year, during her life, from the property given to her in said last will and testament, instead of it being given to her at the time stated in said last will and testament.
"Item 2: I direct that my daughter, Justina Tiedtke, shall not mortgage or in any way incumber the whole or any part thereof, of the income or principal of my estate made for her benefit, for any purpose whatsoever, and I direct that the said payments to be made to my daughter, Justina Tiedtke, stated in said item 1 of this codicil shall be made only to her individually.
"Item 3: I direct that in case my said daughter, Justina Tiedtke, shall at any time have a severe illness lasting for a long period of time, she may be paid in addition to that stated in item 1 an amount out of the principal set aside for her in my said last will and testament an amount, not to exceed five per cent of the said principal in any one year. This only to be paid if it becomes necessary for her comfort or that of her family."
The testator executed two other codicils in 1924. Only the second of these is of any significance in considering the questions to be decided. It reads in full:
"I, Harry Tiedtke, desire that, before any distribution is made of my estate, it be arranged that my daughter, Justina Tiedtke, receive the income from one hundred and fifty thousand ($150,000) dollars during her life time."
At the time of his death the testator had only one child, his daughter Justina, but he then had living two brothers and two sisters. The testator's daughter Justina died in 1946. Prior to that time one of the brothers and both of the sisters of the testator had died. The remaining brother of the testator died in 1950. Both of the brothers and one of the testator's sisters now have descendents living.
The testator's daughter Justina was 19 at the time of the testator's death. She married six years later but died without issue of her body. In 1942 she adopted Robert Millis.
Both the Probate Court and the Court of Appeals held that all of the assets of the trust estate should be distributed to Robert Millis.
The cause is now before this court on appeal from the judgment of the Court of Appeals, a motion to certify having been allowed.
Messrs. Marshall, Melhorn, Bloch Belt, for plaintiff appellee.
Mr. John S. Brumbach and Messrs. Ohlinger, Koles, Wolf Flues, for appellants. Messrs. Baker, Hostetler Patterson and Mr. Dwight B. Buss, for defendant appellees.
The words of item 11 of the testator's will which require construction are:
"In case of the death of my * * * daughter * * * leaving no children, then such * * * trust estate shall be divided among my heirs at law."
It is arguable that, by the provisions of the will, the testator intended that the "children" of his daughter should take in the event that any survived her. See Restatement of the Law of Property, Section 272 and Comments a and f. However, no serious contention is made that the son, adopted by the testator's daughter long after the testator's death, is described by the word "children" in the foregoing-quoted portion of the testator's will. See Albright v. Albright, 116 Ohio St. 668, 157 N.E. 760; Restatement of the Law of Property, Section 287; Third National Bank Trust Co., Trustee, v. Davidson, ante, 355, 360; Flynn, Admr., v. Bredbeck, 147 Ohio St. 49, 68 N.E.2d 75.
The question then is whether the daughter's adopted son is entitled to take under the words "my heirs at law" used by the testator in the portion of item 11 of his will quoted at the beginning of this opinion.
Testator's daughter was actually his sole heir at law when testator died in 1924. Therefore, if the testator's actual heirs at law at his death are described by the words "my heirs at law," then, when the daughter died without leaving children, her estate became entitled to the trust assets. Then, her adopted son could claim them from her. See Hull v. Adams, 399 Ill. 347, 77 N.E.2d 706.
However, appellants contend that, since the testator specifically gave his daughter only a life interest in the trust estate, he thereby expressed an intention that she should be excluded from the class "my heirs at law" to whom the trust assets were to go on the happening of the contingency, i.e., the death of the daughter "leaving no children." Wilberding, Admr., v. Miller, 90 Ohio St. 28, 37, 106 N.E. 665; Jones v. Lloyd, 33 Ohio St. 572. But see annotations at 13 A.L.R., 616, 20 A.L.R., 356, 30 A.L.R., 916, and 61 A.L.R., 1012. If that contention is sound, then it would follow that, since the brothers and sisters of the testator would have been recognized under the statutes of descent and distribution as the heirs of the testator, if he had had no daughter living when he died, they would be testator's "heirs at law," if such heirs are determined as of the date of the testator's death.
In the instant case we do not deem it necessary to determine whether that contention is sound. If it is not sound, then it is obvious that the appellants are entitled to nothing under the words "my heirs at law" in item 11 of the testator's will, if such heirs are to be determined as of the date of the testator's death.
If we assume that the testator did so express an intention to exclude his daughter from the class "my heirs at law," then the question is whether he thereby expressed an intention that his "heirs at law" should not be determined at his death, but instead should be those who would have been his heirs (a) if he had died when his daughter died in 1946, and (b) if the statutes then in effect, instead of those in effect at his death, had been applied. If the testator had actually died in 1946, then Robert Millis, who was adopted by testator's daughter in 1942, would now be the sole heir of the testator. Flynn v. Bredbeck, supra.
A testator's "heirs at law" can actually be determined only at the time of his death. Thus, if the words "my heirs at law" in a testator's will are given their ordinary meaning, they will necessarily describe those who are actually the testator's heirs. Who they are will necessarily be determined by the law in effect at the testator's death. The problem still remains however whether, by what he said in his will, the testator in the instant case expressed an intention that their ordinary meaning should not be given to the words "my heirs at law" but, instead, his heirs should be determined on the assumption that he died at some time other than the time when he did actually die.
If, as we have assumed for the purposes of this opinion, the testator did express an intention that his daughter should be excluded from the class "my heirs at law," then it is apparent that, by expressing an intention that his daughter, who would probably be and actually became his sole heir at law, should be so excluded, the testator probably did not intend to give their ordinary meaning to the words "my heirs at law." Thus, that expression of intention tends to show that, in using the words "my heirs at law," testator had in mind the determination of his heirs at his daughter's death, when for the first time she could not be his heir, instead of at his death, when she would be his sole heir at law. See Comment k under Section 308, Restatement of the Law of Property. See annotations at 49 A.L.R., 174, and 127 A.L.R., 602.
There was nothing in the will in the instant case to rebut that tendency as there was in the will in Wilberding v. Miller, supra.
If we assume that testator did intend to exclude his daughter from the class "my heirs at law," then there is another factor which tends to show that the testator probably had in mind the determination of his heirs as if he had died at the time of his daughter's death instead of at the time when he did die. At the time of the testator's death, his daughter was only 19. His will clearly indicates that he foresaw that she might marry and have children. Presumably he foresaw that her children might also have children, and that her children might predecease her but that her grandchildren might survive her. If his "heirs at law" were determined at the date of his death and his daughter was excluded from being his heir, then the provision for his "heirs at law" might benefit his brothers and sisters or their descendants but could never benefit any children of his daughter's children. There is nothing in the will to indicate any intention to prefer descendants of his brothers and sisters over his own direct blood descendants. Presumably he would intend otherwise.
The foregoing factor was not present in Ohio National Bank of Columbus, Trustee, v. Boone, 139 Ohio St. 361, 40 N.E.2d 149, 144 A.L.R., 1150. Likewise, in that case there was nothing in the will which might have justified the conclusion, that the testator intended to exclude from taking as his "heirs" anyone who would have been his heir at the time of his death. Furthermore, this court in the Boone case stressed the fact that the remainder to the "heirs" there involved was a vested remainder (Cf. Barr v. Denney, 79 Ohio St. 358, 87 N.E. 267) and that the law favored the vesting of estates at the earliest possible moment. In the instant case, the provision for the testator's "heirs at law" is obviously a contingent interest, inasmuch as it can come into existence only by reason of the event, which was definitely uncertain at the time of the testator's death, of the decease of his daughter "leaving no children." See King v. Beck, Admr., 15 Ohio, 559, 563, 564.
Our conclusion therefore is that, if the testator intended to exclude his daughter from his "heirs at law" as that term was used in item 11 of his will, then he intended that such "heirs" should be determined at the time of the death of his daughter in 1946.
Appellants contend that, if those "heirs" are determined at that time, those heirs should be determined by applying the statutes of descent and distribution as in force in 1924 and not those in force in 1946.
We believe that prior decisions of this court require the conclusion that the statutes as in force in 1946 should be applied. Smith v. Hunter, Trustee, 86 Ohio St. 106, 99 N.E. 91; Holt v. Miller, 133 Ohio St. 418, 14 N.E.2d 409. See annotation, 139 A.L.R., 1107, 1111. See, also, Ohio National Bank v. Boone, supra, 364, 370. We recognize that, in both Smith v. Hunter, supra, and Holt v. Miller, supra, the question to be determined was the meaning of "heirs" with reference to a party other than the testator. In each instance, it was held that changes in the statutes of descent and distribution after the death of the testator should be applied in determining who were heirs at the time when heirs were to be determined, that is, at the time of the death of the party whose heirs were involved. On the other hand, heirs of the testator are involved in the instant case and they would ordinarily be determined by applying the statutes in force at the death of the testator. However, where, as here, the testator has in effect provided for a limitation to his heirs, to be determined as if he had died at some time later than his actual death, we believe that, if the testator intends that such heirs should be determined under statutes in effect at his death instead of at the time specified for their determination, his will should contain some expression of such an intention. Central Dispensary Emergency Hospital v. Saunders, 165 F.2d 626. It is arguable that, since the testator cannot be familiar with the statutes of descent and distribution after his death, his expression of an intention to have his heirs determined at some time subsequent to his death does not justify the application of such statutes enacted after his death. However, such expression of intention certainly exhibits the same indifference to what those statutes may be at that time as where a testator makes provision for the heirs of other parties. Since testator's daughter was only 19 at the time of his death, he must have known that the determination, as to who would eventually take under the words "my heirs at law," might depend upon the happening of a large number of events over which he had no control. There is no reason to infer that he intended to exclude a change in the statutes from the number of such events. See Holmes, Trustee, v. Alexander, 82 N.H. 380, 134 A. 536.
It is argued that the conclusion which we have reached will deprive a testator of protection against changes which the Legislature may make in the statutes of descent and distribution after his death. The answer to such argument is that this testator might have provided in his will that his heirs should be determined by applying the statutes of descent and distribution in force at the time of his death. By merely expressing the intention that his heirs should be determined as if he had died at the time of the death of his daughter, we believe he has in effect expressed an intention that the same statutes of descent and distribution should be followed in determining who those heirs are as would be followed in determining the heirs of anyone who died at that time.
It is arguable that, by providing for his "heirs at law," after providing for his "daughter" and her "children," the testator intended to confine the words "heirs" to "heirs of his body." Cf. Cultice v. Mills, 97 Ohio St. 112, 119 N.E. 200. However, in such an instance, there would be a reversion to the testator's daughter as his sole heir at law; and that reversion would vest at the testator's death. Gilpin v. Williams, 25 Ohio St. 283. Then, when testator's daughter died without issue her adopted son would inherit that vested remainder from his mother.
Since we do not believe that there is any theory upon which the claims of appellants to any part of these trust assets can be sustained, the judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART and HART, JJ., concur.
MIDDLETON and MATTHIAS, JJ., concur in the syllabus and in the judgment.