general residuary clause in Ohio

1961This conclusion is also in harmony with the decision of the Court of Appeals of the Second District, in Collins v. Patton, 64 Ohio Law Abs., 518 , 113 N. E. 2d, 100 , wherein it is held, as appears by paragraph one of the headnote: “A general residuary clause of a will is one which disposes of that part of the testator’s estate, including lapsed, illegal or ineffective bequests or devises, which remains after the satisfaction of all previous bequests and devises.” We also conclude that the so-called “anti-lapse” statute is applicable.

1961This conclusion is also in harmony with the decision of the Court of Appeals of the Second District, in Collins v. Patton, 64 Ohio Law Abs., 518 , 113 N. E. 2d, 100 , wherein it is held, as appears by paragraph one of the headnote: “A general residuary clause of a will is one which disposes of that part of the testator’s estate, including lapsed, illegal or ineffective bequests or devises, which remains after the satisfaction of all previous bequests and devises.” We also conclude that the so-called “anti-lapse” statute is applicable.

1980Paragraph one of the syllabus in Carr v. Stradley (1977), 52 Ohio St. 2d 220 , reads as follows: “In the construction of a will, the sole purpose of the court should be to ascertain and carry out the intention of the testator.

1980Bank (1962), 344 Mass. 1 , 181 N. E. 2d 6 .” Id., at page 359.

1980Bank (1962), 344 Mass. 1 , 181 N. E. 2d 6 .” Id., at page 359.

1976Oglesbee v. Miller (1924), 111 Ohio St. 426 .

1973Definitions of a general residuary clause seem almost superfluous, but I will nevertheless quote briefly from the same textbook cited by the charities. # * A general residuary clause disposes of the residuum of all testator’s property not otherwise disposed of, without regard to its nature * * 4 Bowe-Parker, Page on Wills (1961), Section 33.46. i i # # * “ * * * Any words which show an intention to dispose of all of testator’s estate not otherwise disposed of, will serve as a residuary clause.” Id., Section 33.48, page 372.

1973Definitions of a general residuary clause seem almost superfluous, but I will nevertheless quote briefly from the same textbook cited by the charities. # * A general residuary clause disposes of the residuum of all testator’s property not otherwise disposed of, without regard to its nature * * 4 Bowe-Parker, Page on Wills (1961), Section 33.46. i i # # * “ * * * Any words which show an intention to dispose of all of testator’s estate not otherwise disposed of, will serve as a residuary clause.” Id., Section 33.48, page 372.

1973To uphold their contention that paragraphs (e) and (f) of Item II are really the residuary clauses, the charities rely, at least partially, on Witteman v. Dunkle (1969), 21 Ohio St. 2d 3 , 254 N. E. 2d 345 .

1973To uphold their contention that paragraphs (e) and (f) of Item II are really the residuary clauses, the charities rely, at least partially, on Witteman v. Dunkle (1969), 21 Ohio St. 2d 3 , 254 N. E. 2d 345 .

1963If a gift in violation of the type of statute in question is not in the residuary clause, it passes under a general residuary clause if there is one. 1 Bowe-Parker: Page on Wills, Sec. 3.16, p. 110 (1960); Davis v. Davis, 62 Ohio St., 411 , 57 N. E., 317 (1900) (recognizing rule, but making exception to it by reason of particular wording of will); Deeds v. Deeds, 58 Ohio Law Abs., 129 , 42 Ohio Opinions, 384, 94 N. E. (2d), 232 (Prob.

1956“The presumption against intestacy is especially strong where testator has attempted to insert a general residuary clause.” Ibid.

1951In Koontz, Exr., v. Hubley, a Minor, 19 Ohio App. 484 , *Page 58 affirmed by the Supreme Court in 111 Ohio St. 414 , 145 N.E. 590 , the testator left a specific devise in the general residuary clause.

1951In Koontz, Exr., v. Hubley, a Minor, 19 Ohio App. 484 , *Page 58 affirmed by the Supreme Court in 111 Ohio St. 414 , 145 N.E. 590 , the testator left a specific devise in the general residuary clause.

1951In Koontz, Exr., v. Hubley, a Minor, 19 Ohio App. 484 , *Page 58 affirmed by the Supreme Court in 111 Ohio St. 414 , 145 N.E. 590 , the testator left a specific devise in the general residuary clause.

1951In Koontz, Exr., v. Hubley, a Minor, 19 Ohio App. 484 , *Page 58 affirmed by the Supreme Court in 111 Ohio St. 414 , 145 N.E. 590 , the testator left a specific devise in the general residuary clause.

1949Brown, and their descendants are entitled to sepulture in it.” One of the best reasoned cases, and the one most often cited by courts considering rights in cemetery lots is In re Waldron, supra. In laying down the general proposition that a burial lot does not pass under a general residuary clause in a will but descends as intestate property, this Rhode Island court said: “He had devoted this lot to pious and charitable uses as a place of burial for the members of his own family ....

1949In re Waldron, supra. In spite of the fact that Massachusetts courts have held that only an easement or license passes under a cemetery deed, in one case, at least, the court held that that easement or license was no different, so far as the rights of the owners were concerned, from any other interest in real estate.

1913Miner, reported at page 121, the second syllabus is as follows: “Unless a residuary bequest is circumscribed • by clear expressions, and the title of the residuary legatee narrowed by words of unmistakable import, it will, to prevent intestacy, be construed so as to perform .the office intended, that is, to dispose of all the residuary estate.” On page 131 of the opinion, after using the language included in the syllabus which I have just read, and referring to the. case of Riker v. Cornwell, 113 N. Y., 115 , the court proceeds.to say:.. ;‘‘The rule of construction requires of the court, in de

1913In the case of James Woodside’s Estate, 188 Pa. St., 45, the court, in the syllabus, states the doctrine to be: “A partial intestacy is not to be presumed if the words used will carry the whole estate, and a construction is to be given a will which will avoid a partial intestacy unless the contrary is unavoidable.” In the case of Lamb v. Lamb, 131 N. Y., 227 , in the first syllabus the court expresses the doctrine thus : “In the interpretation of a will, a residuary clause the language of which is ambiguous is to be given a broad rather than a narrow construction, so as to prevent intestacy, a

1913Miner, reported at page 121, the second syllabus is as follows: “Unless a residuary bequest is circumscribed • by clear expressions, and the title of the residuary legatee narrowed by words of unmistakable import, it will, to prevent intestacy, be construed so as to perform .the office intended, that is, to dispose of all the residuary estate.” On page 131 of the opinion, after using the language included in the syllabus which I have just read, and referring to the. case of Riker v. Cornwell, 113 N. Y., 115 , the court proceeds.to say:.. ;‘‘The rule of construction requires of the court, in de

1907An instructive case on this subject and one containing a statute like ours and giving the history of such legislation is Winchester v. Foster, 57 Mass. 366 , the opinion of the court being delivered by Shaw, C.

1888The only decision, perhaps, that may be found, that bears at all strongly against this, is Lovell v. Quitman, 88 N. Y. 377 .

1862The case of Lupton v. Lupton, 2 Johns.