dissenting. I dissent from the judgment herein entered by the majority of this court.
Item 2 and Item 3 of the will provide:
“Item 2. I give, and devise my interest in real estate known as 17506 Lorain Avenue, Cleveland, Ohio, and further *364known as Sub Lots 3 and 4 in Panl Allien Subdivision (Vol. 63, Page 36 of Records) as follows:
Six-sevenths (6/7ths) to my brother, Frank J. Thomas, One-seventh (1/7th) to my brother, Walter Thomas, absolutely and in fee simple.
“Item 3. All the rest, residue and remainder of my estate, real and personal of every kind and description which I own or have a right to dispose of I give, devise and bequeath to my brother, Frank J. Thomas. In the event of his predecease, the residue of my estate shall pass to my brother, Walter Thomas, and my sister, Florence Thomas, in equal share.”
Frank J. Thomas, the principal beneficiary under the will, died without issue, November 25, 1954, and Florence Thomas, one of the two remaining beneficiaries under the will, died without issue, May 12, 1957. Thus, Walter Thomas is the only surviving beneficiary named in the will. His three sisters not mentioned in the will also survived the decedent.
At the time of his death, the testator was the owner of thirteen-fourteenths of real property, valued at $25,500, described in the will and also possessed personal property of the value of $6,803.13.
The fact which is made perfectly clear from an examination of Item 2 of the will is that the devise of six-sevenths of the testator’s real property, which devise was identified by description, was a specific devise to his brother, Frank J. Thomas, and the balance of the real estate passed by specific devise to his brother, Walter Thomas. This portion of the property did, in fact, pass to Walter Thomas. The first paragraph of Item 3 provides “All the rest, residue and remainder of my estate, real and personal of every kind and description which I own or have a right to dispose of I give, devise and bequeath to my brother, Frank J. Thomas.” This could only mean all other property that he might own at the time of his death, not otherwise specifically provided for, was disposed of by this provision and did not include or intend to, and, of course, could not include the real property, most of which he had already devised to the same beneficiary, his brother, Frank.
The last sentence of Item 3 provides “In the event of his predecease (Frank J. Thomas), the residue of my estate shall *365pass to my brother, Walter Thomas, and my sister, Florence Thomas, in equal share.” This item being a part of the item of the will granting to Frank the balance of the testator’s property clearly refers to and includes only the property .devised and bequeathed by the first part of this item and could not have intended to include any other property then owned by the testator. The word “residue” in this sentence refers directly to that which was disposed of in the first part of Item 3 as residue. Any other interpretation would be to disregard the plain meaning of the words used by the testator. The case of Davis v. Davis, 62 Ohio St., 411, 57 N. E., 317, completely supports this conclusion. The first, second and third paragraphs of the syllabus provide:
“1. When a residuary clause in a will admits of a limited application as well as of one of a more general character, it should be given that construction which will be most favorable to the heir-at law.
“2. The rule which adopts a construction more favorable to the residuary legatee with respect to void or lapsed legacies than is applied with respect to void or lapsed devises, does not . obtain in this state. The will should be construed, in either case, so as to give effect to the intention of the testator as fairly ascertained from a consideration of all its provisions and his situation at the time of its execution.
“3. Where the residuary clause is limited in terms to ‘the balance’ that remains after the payment of certain legacies from a fund derived from particular property, the amount of such legacies that are void or lapsed, does not pass under such clause, but is subject, as undisposed of property, to the statutes of descent and distribution.”
The facts in the Davis case were that one, William Hutchings, by his will, left several specific bequests to charities and provided that his business interest be disposed of and the money used for “all before specified as my indebtedness and to my legatees and the charities. The balance be divided between the children living at my death, of the hereinafter named brothers and sisters of my late wife and myself, viz: Robert Hutchins, Phillip Hutchins, (2 daughters) William Down, Mary Montjoy, Grace Isaacs, my late sister, Elizabeth Noakes, and Catherine *366Isaacs. P. S. Henry Noakes had 100 dollars deduct and properly divide with others.” The testator died within a year after the execution of the will whereby the three charitable gifts, of a total of twenty-five hundred dollars, were rendered void.
The question presented for construction, as stated by the court on page 414 of the opinion, was “* * * whether the amount of the void legacies fell into the balance above mentioned, or passed as undisposed of property to the adopted child.” The Circuit Court had held that the void legacies passed as a part of the “balance” under the residuary clause. The Supreme Court said: “This conclusion seems at variance with the language of the will and the apparent intention of the testator. The ‘balance’ that is given to the so-called residuary legatees is not the general residuum of all of the testator’s estate but only what remained of a particular fund derived from specified sources after deducting therefrom the amount of the charitable legacies and certain other charges upon it. The gift of that balance necessarily excludes from the gift everything that the will provides shall be deducted from the fund in order to arrive at the balance.”
The application of the rule of law, as thus stated, when applied to the facts of the case now before us, requires the conclusion that the testator intended that his brother, Frank, was to receive the residue of his estate but if Frank predeceased the testator, then such “residue” should pass to his brother, Walter, and sister, Florence, since the words to be interpreted are found as a part of and in the same item dealing with that part of the testator’s property remaining after the specific devises. This conclusion necessarily brings about the result that that part of the real estate intended to pass to Frank J. Thomas by specific devise, not being disposed of by the will because of bis death prior to that of the testator, passed by intestate succession to all the brothers and sisters of the testator living at the time of his death.
The rule of interpretation and the burden of proof contended for by the appellant in citing 41 Ohio Jurisprudence, page 947, Wills, Sec. 831, “Lapsed Legacies and Devises” under “Residuary Clause,” does not clearly support his contention. There it is provided, after referring to the common law *367rule that lapsed legacies of personal property generally fall into the residuary clause, while lapsed devises of real property generally to the heirs at law, the following: “The modern rule is that residuary clauses carries all the estate of the testator not otherwise lawfully disposed of by will, including void and lapsed legacies and devises. There can he no proper application of the rule, however, when a different intention may he fairly drawn from all the provisions of the will or such lapsed legacy is expressly excluded from the general residuary clause.” (Emphasis added.) In other words, the burden is on the heirs of proving a construction different from the rule that a residuary clause carries all the estate not otherwise lawfully disposed of. Here, the facts being stipulated, there is no question of the burden of proof presented. The only question is whether or not the last sentence of Item 3, connected as it is with the only other sentence in the paragraph and qualifying the devise and bequest which is contained in the first sentence, can be said to deal with property beyond that disposed of in the first sentence in the event of the death of the beneficiary named in the first sentence of the paragraph.
There is no general residuary clause in this will. This fact distinguishes the case of Hewes, Admx. v. Mead, 81 Ohio App., 489, 80 N. E. 2d, 212, where, on page 493 of the opinion, the court said:
“Where a residuary clause refers to a balance after other gifts, or to a specific fund, or to a certain class of property, or words of like import, the courts have uniformly interpreted the language to limit the residuary estate to the particular property. If, however, the residuary clause contains no such clearly expressed intention to limit the property given, then it is deemed to be of a general nature, and lapsed gifts pass as designated in the will. Davis v. Davis, Exr., 62 Ohio St., 411, 57 N. E., 317, 78 Am. St. Rep., 725; In re Stewart, 37 Ohio Law Abs., 105, 45 N. E. (2d), 792; 41 Ohio Jurisprudence, Wills, Section 833, et seq., and cases there cited; 10 A. L. R., 1522.’’
The last sentence of this quotation was the basis of the court’s decision in that case, the first sentence clearly stating the rule to be applied in the case at bar.
Some mention is made by the appellant of the rule that if *368possible the construction of a' will should favor testacy rather than intestacy of part of the property of the testator. This rule is no more persuasive in this case than the rule that a court of equity will give that construction to a will which will be most favorable to the heirs at law.
In the case of Bane v. Wick, 19 Ohio, 328, the court said in the syllabus:
“If the language of the testator, in a residuary clause of his will, will admit of a limited application, as well as one of a more general character, a court of equity will give it that construction which will be most favorable to the heir at law.”
This case was followed in the Davis case (supra) where, on page 417, the court quoted with approval the first paragraph of the syllabus of the Bane case. Also, on page 334 of the Bane case, the court said:
“It is true, ‘a court of equity is never disposed to put such a construction upon a will as would be likely to lead to an intestacy.’ But, where the testator has wholly failed to give his meaning, or any clue to the same, and the. residuary clause will admit of more than one construction, a court of equity will be expected to adopt that which will affect the least injuriously, the heir at law.”
Both the Davis and the Bane cases are cited in 41 Ohio Jurisprudence, 950, Wills, Sections 832 and 833, where, in the last cited section, it is said:
“It seems that where the residuary clause is confined to a certain residuum or a certain fund, it will be restricted accordingly in construing its scope unless there is a clear expressed wish to the contrary.”
Here the facts are that the brother who was the member of the testator’s family that he intended should enjoy the greater part of his estate passed away before the testator and there remained only one of the testator’s brothers and sister (who also passed away before the testator) mentioned in Item 3, who were given but a small interest in the estate by the testator’s will. A reasonable construction of the provisions of the will in question would benefit all of his immediate family. Such reasonable construction should, therefore, be adopted by the court of provisions doubtful in meaning that would effect the least injury to the heirs at law.
*369For the above reasons, I dissent from the view of the majority of the court and hold that the judgment of the Probate Court should be affirmed.