dissenting. The danger in applying settled case law to wills is that all wills are personal. Intentions of testators and stylistic preferences of lawyers combine to make unique documents. Thus, while particular cases may appear to be applicable to a particular will, a closer reading of the language of the wills involved reveals key differences. Such is the case in this matter.
The majority cites Hamilton v. Pettifor (1956), 165 Ohio St. 361, 59 O.O. 470, 135 N.E.2d 264, for the proposition that use of the term “survivors” in the clause of a will refers to the survivors named in that clause, and not to the children of a deceased beneficiary. The Hamilton interpretation was correct in that particular case because of the particular language employed. That will read:
“If my wife should predecease me, should remarry, or at her death after my decease, I give, devise and bequeath all of my property of any kind, nature and description, then remaining, of which I may own or have the right to dispose of at the time of my decease, to my three (3) children, Carl, Emma and Muriel Pettifor, or their survivors, absolutely and in fee simple, equally, share and share alike.”
The key phrase in the clause is “to my three children * * *, or their survivors, absolutely and in fee simple, equally, share and share alike.” In the Hamilton will, the “or their survivors” language comes before the “share and share alike” language. Thus, if the court had interpreted the “or their survivors” language as including the children of a deceased beneficiary, the collective surviving beneficiaries and the deceased beneficiary’s, children would be part of the group that would “share and share alike.” They would each get an equal share of the estate, thereby extending the number of persons in the class. For example, in Hamilton, if the deceased beneficiary, Muriel, had had two children, those two children would get shares of the estate equal to what the surviving beneficiaries, Carl and *573Emma, got. Each would wind up with one fourth of the estate. Muriel’s children would fare better than under even a per stirpes distribution, and Carl and Emma would fare worse. If the Hamilton court had read “survivors” as “children of beneficiaries,” the more children a deceased beneficiary might have, the smaller the shares for the surviving beneficiaries.
There is no such danger in this case. Here, the “or to the survivors thereof’ language follows the language that grants each of the five beneficiaries an equal share. Again, the language reads that the estate goes to “Dorothy Landrum, Dixie Lee Polen, Dorothy N. Franklin, Ercil Cutler and George Baker, equally share and share alike, the same to be theirs absolutely, or to the survivors thereof.” In this case, the will clearly creates shares in the estate before the “survivors” language appears. Each named beneficiary is granted one fifth of the estate. The “survivors” are outside of the phrase bequeathing the estate to the five persons. Thus, unlike in Hamilton, no matter the size of each beneficiary’s family, the size of each share could not be diluted to less than one fifth of the total of the estate. That one-fifth share belongs absolutely to each of the five named, so absolutely, in fact, that even in their own death that share gets passed on to their own survivors.
In short, the will in this case creates a solid one-fifth distribution for each beneficiary. In Hamilton, if the court had interpreted “survivors” as children of original legatees, the distribution could have been fractionalized further. Thus, in Hamilton, allowing children of legatees to participate would potentially leave the original beneficiaries worse off than if all of them had survived. Because of the different placement of the “survivors” language in this case, the same potentiality did not exist.
It is a subtle difference between the two wills, but very significant. And it is significant enough a difference that the will in this case should be considered separately from Hamilton. It seems to me clear in this case that the testator’s intent was to give equal shares of the estate to the five beneficiaries, and that if a beneficiary died, their one-fifth share would go to their survivors. At the very least, the clause at issue is ambiguous. As such, the clause does not defeat the antilapse statute. The statute reads:
“Unless a contrary intention is manifested in the will, if a devise of real property or a bequest of personal property is made to a relative of a testator and the relative * * * dies after that time, leaving issue surviving the testator, those issue shall take by representation the devised or bequeathed property as the devisee or legatee would have done if he had survived the testator.” R.C. 2107.52(B).
The will in this case does not contain language that overcomes the statute’s presumption in favor of deceased beneficiaries’ survivors. If one can logically *574read this will to allow for recovery by children of a beneficiary, then it certainly does not manifest the “contrary intention” as required by the antilapse statute.
Kegler, Brown, Hill & Ritter, R. Douglas Wrightsel, Stephen E. Chappelear and Mark R. Reitz, for appellee. Wood & Lamping LLP, Paul R. Beminger, W. Kelly Lundrigan and Catherine S. Neal, for appellants.The court today stamps the language used in this will with its imprimatur. Do we really want the language of this will to be the benchmark for how to avoid the antilapse statute? Is this the example we expect Ohio practitioners to follow? This court’s ruling today not only defeats the intent of the testator in this case, it defeats the General Assembly’s intent in enacting the antilapse statute.