Hess v. American Bible Soc.

Citations

• 28 Ohio C.C. Dec. 172

Syllabus

<p>WILLS.</p> <p>Shields, Powell and Houck, JJ.</p> <p>Devise to Sister and Her Husband, Charged With Bequest to Bible! Society Lapses as to Sister's Undivided Share at her Death Without Issue and Interstate or Equitable Election Requires Payment Out of Her Share and Husband Deemed to Elect to Accept his Share.</p> <p>The will of M devised certain real estate to his sister and her husband jointly, burdened with a bequest of $10,000 to the American Bible Society. The sister died without issue prior to the death of the testator. The husband survived the testator, but died before a sale of the land had been effected or he had made an election under the will. Held:</p> <p>1. The bequest to the sister of an undivided one-half of said property lapsed, and said interest thereby became intestate property.</p> <p>2. The other undivided one-half passed under the will to the husband of said sister, subject to his right of election to accept benefits and assume the obligations thereby conferred, with the privilege of postponing his election until he could determine whether acceptance of the bequest would prove a benefit or a detriment; and inasmuch as there will be something over after payment of the legacy to the bible society together with costs, he will be presumed to have elected to take.</p> <p>3. If the devise to the sister did not lapse, it became subject to the equitable rule of election, and in either event should be applied to payment of the disappointed donee, the bible society, whose legacy was general and not special, and as intestate property this lapsed bequest should be exhausted in payment of costs and the bible society legacy before resort is had to the remainder of the estate.</p> <p>4. The residue of the legacy to the bible society with accrued interest should be paid out of the other half of the estate, the balance over going to the heirs of the deceased devisee.</p> <p>[Syllabus by the court.]</p>