Hewes v. Mead (81 Ohio App. 489, 1947)

Htjnsicker, J.

This appeal from an 'order of the Probate Court of Lorain county, Ohio, was submitted to this co.urt by counsel on questions of law. The action was one .to construe the will of Harriet Cobb, deceased.

.Item 2 of decedent’s will, the subject for consideration by this court, reads as follows:

“Item 2. I give, devise and bequeath to my husband,, John Cobb, if he survive me, all the rest’and residue of my estate whether real, personal or mixed bf every character, kind and description that I may die seized of after the payment of prior items to be his absolutely and forever; in the event that my husband John Cobb does not survive me then in that event I give, devise and bequeath to Rose Pox, of Chicago, 111., my' husband’s sister, whatever.interest I should have or receive of every nature, character and description through the will of my said husband, John Cobb, to be hers absolutely and forever. ■ And the. residue or remainder I give, devise and bequeath to my sister, Georgia E. Mead, and my foster sister, Cecile H. Lees, of Henrietta township, Lorain county, Ohio, such remainder, equally, share and share alike, absolutely and forever.”

On June 29, 1929, Harriet Cobb, the decedent herein, made her will. On October 7, 1941, Harriet Cobb was declared incompetent, and John Cobb, her husband, was until his death on April 2, 1942, her guardian. Harriet Cobb remained under guardianship until her death on January 26, 1946, with Grace Mary Hewes the successor guardian. Rose Fox, the sister of John Cobb, died on October 8, 1944, leaving as her children and sole heirs at law, the appellants herein, Paul Fox, John P. Fox, Mrs. Helen Keipp and Mrs. Olive Tezla.

The Probate Court held that the devise and legacy to Rose Fox lapsed and passed to Georgia Mead and Cecile H. Lees, appellees, as a part of the residuary estate of Harriet Cobb, deceased.

Appellants in their assignment of errors say that the court erred in ruling that:

“1. * * * the devise and bequest to Rose Fox lapsed and became void, rather than vesting in her heirs.

“2. * * * the property devised and bequeathed to Rose Fox passed as part of the ‘residuary estate,’ since no residuary estate was set up by the will of Harriet Cobb.

“3. * * * the portion of the estate of Harriet Cobb which came to her under the will of her deceased husband passed in its entirety t'o Georgia Mead and Cecile H. Lees, rather than one-half to them and one-half to appellants under Sec. 10503-5, General Code.”

The questions raised are:

1. Does the phrase “to be hers absolutely and forever” vest the estate in the heirs of Rose Fox?

2. Does the will of .Harriet Cobb establish a class bequest?

3. Does the bequest to Rose Fox lapse under Section 10504-73, General Code?

4. Is the residuary estate set forth in Item 2 herein of a particular or a general nature? (If of a particular nature, it would, under certain circumstances, pass as intestate property. If of a general nature, it would, under certain circumstances, pass .under the will as of a part of the residuum.)

Until the death of Harriet Cobb, no rights conld arise in Rose Fox or any one claiming under her, for the will speaks only from the death of the testatrix. Such rights as do arise are limited by the terms of the will which creates them. Patton v. Patton, 39 Ohio St., 590, at page 597; Ohio National Bank, Trustee, v. Boone, 139 Ohio St., 361, 40 N. E. (2d), 149, 144 A. L. R., 1150.

In order for the title to vest in the appellants herein, it would be necessary to say that the phrase “to be hers absolutely and foreyer” really means “to her or her heirs absolutely and forever.” The general rule is that, where the will uses the words “or her heirs” following a devise or bequest to a named devisee or legatee, there is a substitutive or alternative-provision preventing a lapse in case such devisee or legatee predeceased the testatrix. 41 Ohio Jurisprudence, Wills, Section 822; 78 A. L. R., 1008, and cases, there cited; 128 A. L. R., 94, and cases there cited.

Absolutely means “without limitation or qualification.” ' Forever means “at all times, always.”

We cannot write into the will something which the-testatrix did not say, and which she could have said- at the time of its execution, had she so desired. The-words “absolutely and forever” characterize the-quality of the estate given but do not create an estate.

In the second question raised by appellants — that there was created herein a class bequest — it is to be-noted that a. direct bequest was made to a named individual. There is nothing in the will to indicate that Harriet Cobb, the testatrix, intended to create a class, to include the heirs of Rose Fox.

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