The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 15
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CITY NAT. BANK V. SLOCUM 10D
line had been drawn through the words "the heirs of his body." The
will therefore may be read, according as attention is or is not paid to
these indications of change, in three different ways (all subject to the
mother's life estate): (1) "To him and the heirs of his body"; (2)
"to him in trust for the heirs of his body;" (3) "to him." The first
form, it is agreed, would, under the laws of Ohio, create an estate in
fee tail, giving a life estate to him and remainder to his children. The
parties also agree that the second form would give him no beneficial
interest. The third form, it is said, would give him the fee, although
that will call for attention later.
[1, 2] The court below had no probate jurisdiction. It might con-
strue a will, but it could not determine the contents. That power of
determination rested solely with the court which admitted the will to
probate; but the decree of that court, like every contract or decree
which forms the basis of rights asserted in another court, must be
examined and construed to determine its force and effect, if there is
room for construction This probate order, seen in the light of admit-
ted surrounding facts, at once indicates an ambiguity. As the will was
filed for probate, it was in the condition which has been- described;
that is to say, the words "in trust for" were interlined in place of the
"&," an ink line was drawn through these three words, and a pencil
line drawn through the words "heirs of his body." The order recited
that the matter came on to be heard on the petition to admit to probate
and record a will "heretofore filed in this court therefor," that no-
tice had been given, and that the subscribing witnesses had testified
to "the due execution and attestation of said will," and proceeded:
"i'hereupon the court finds that the aforesaid instrunient of writing is the
last will and testament of the said Lettie A Joy, ldeceased. * * * It is
therefore by the court ordered that the .aid will be admitted to probate, and
that it * * * be entered of record in this court "
Thereupon the will was entered at length upon the court records;
and its condition, as above stated, was in all details reproduced upon
the record, except for the "&," and except for the distinction between
an ink line and a pencil line; that is to say, the clause was first written
"to him in trust for the heirs of his body," and then an ink line was
drawn through the words "In trust for the heirs of his body." It was
doubtless intended thus to find that the will at the testatrix's death,
and as left by her, was in the condition so reproduced; but was it the
intention of the probate proceeding, taken altogether, to declare that
these words had been erased before the will was executed and so were
no part of it, or rather that these words were then present and thus
formed a part of the effective will? Neither intent is inconsistent with
what was done. The drawing of the lines through the specified words
as written upon the record tends to show that they were not to be
considered as present in the instrument recorded. On the other hand,
any reproduction at all of these words upon the record was unneces-
sary, unless it was intended that they were effective. It was the duty
of the court to record only the words and phrases which constituted the
will, and the erasing line may well indicate that it was merely in-
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/37/: accessed September 23, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.