Murphy v. Black

Seevers, Ci-i. J.

The plaintiff and Jane Murphy, being the owners of separate property, made and executed the following instruments in writing, or wills:

1. Jane Murphy willed or bequeathed all her property to the plaintiff.

2. The plaintiff willed or bequeathed all of his property to Jane Murphy.

3. The plaintiff and Jane Murphy executed what is termed “ their last will and testament,” whereby they devised all their property to the defendants.

These several instruments were executed at the same time, or as near the same time as could be, and were evidently intended as parts of the same transaction. The two first instruments, however, on their face, show they were executed at 5 o’clock p. m., and the latter at 6 o’clock p. m. of the same day.

The plaintiff must recover, if at all, on the strength of his own title, and not by reason of any weakness in that of the defendants. The material inquiry is, can the plaintiff recover under what is claimed to be the sole will of Jane Murphy?

i. mi*.: mterpretation : intention of ' testator. In the construction of wills the intention of the testator is the first and great object of the inquiry, and all papers of a testamentary character must be taken and construed together, and therefrom the intention of the testator ascertained. 4 Kent, 534, 535; Redfield on Wills, 435.

2.-: — life estate. It is very clear the intent of these parties was that the survivor should have and own all the property of both during the life of such survivor, and at his or her death the defendants should become such owners. This intent is manifest, among other things, from the fact that the two first instruments were executed at 5 o’clock and the other an hoitr afterward; that is, they declared their intent to so execute, while in fact no such period did intervene.

All these instruments are of a testamentary character, and taking them by the “four corners” for the purpose of ascertaining the intention of Jane Murphy, we have no difficulty in determining that it was not her intent the plaintiff should *178 take a fee simple estate. Whether what is termed the joint will is valid as a devise or not makes no difference; it is competent and proper it, should be looked into for the purpose of determining the intention of the testator in the execution of the will under which the plaintiff claims.

Substantially, all three of these instruments are one, executed at one and the same time, and might have been well contained in one paper. At least* this is as favorable as the plaintiff can claim, and such an instrument was held void as a will in Walker v. Walker, 14 Ohio St., 157 , in which case it is said a joint will cannot be upheld, while just the contrary is held in ex parte Day, 1 Bradford’s Surrogate Reports.

The opinions in these cases are able and review in a great measure the same authorities, and arrive at different conclusions. If we adopt the reasoning and conclusion reached by either of these cases the result will be adverse to the plaintiff.

The record does not disclose who the legal heirs of Jane Murphy are, and we are not advised that any of them, except the plaintiff, are parties to this action. It would. be, therefore, premature and improper to determine whether what is termed the joint will vests the legal estate of the premises in controversy, at the death of the plaintiff, in the defendants or not, and for the same reason it would be improper to determine whether such will is valid as a compact or not.

By the amendment to the petition the plaintiff seeks to recover, and claims to be owner of the fee simple title under and by virtue of the will of Jane Murphy, and we hold he is not entitled to such an estate, but to a life estate only. Therefore the District Court properly dismissed the petition.

Afeiehed.