Brower v. Hunt (18 Ohio St. 312, 1868)

White, J.

The lands described in the second cause of action were acquired by Thomas Hunt by purchase. On his death, these lands descended to his surviving wife, Joanna, in foe; and the principal question for determination in the case is, whether, on her decease, the lands descended to the brothers and sisters of Thomas, or to the brothers and sisters of Joanna.

The ease arises under the act regulating descents, of 1853, as amended April 17, 1857 (S. & C. Stat. 501) ; and the question is to be solved by ascertaining whether the succession is regulated by the first or second section of the act.

All intestate estates are by our law divided into two classes, and the line or order of succession is to be determined by the class to which they belong. The first section creates, defines, and prescribes the course of the first class, and all estates embraced within this section have been appropriately called ancestral. All estates not included in the first class necessarily belong to the second, are non-ancestral in their character, and pass under the second section. Persons claiming as heirs to an intestate can not trace their title to the same estate partly under the first and partly under the second section.

The order of succession is the same in the descending line both as to ancestral and non-ancostrnl property. In the collateral and ascending lines it is different, and whoever is admitted to J-he succession must possess the qualifications prescribed by the statute for the line in which he claims to stand.

The distinction between 1 hese two classes of estates was *in- [384-troduced into our law by the act of February 22, 1805. 1 Chase, 515. Prior to this act, beginning with the ordinance, the principle of the civil law prevailed, and no distinction was made on account of the title by which the estate was acquired, or the ancestor from whom it was derived.

Under the act of 1805, none but the kindred of the intestate could take the estate ; and the classification of ancestral property was: “ That if the estate came by descent, devise, or deed of gift, from an ancestor,” it should descend: 1. To the children of the intestate, etc.; 2. To the brothers and sisters of the intestate of the blood of the ancestor from whom the estate came, etc.; 3. To the next of kin, to and of the blood of the intestate; and of non-ancestral property: “ That if the estate came not by descent, devise, or deed of gift, but was acquired by purchase by the intestate,” it should descend — (1) to the children of the intestate, etc.; and these failing, to his kindred in the order named.

The ancestral principle here first introduced was carried no further in favor of the blood of the ancestor, than as such blood was found in the brothers and sisters of the intestate, and its only effect was to work a preference in their favor against the other brothers and sisters of the intestate.

By amendment in 1814, (2 Chase, 854,) the ancestral principle was extended as it is found in the acts of 1853 and 1857, having been carried forward in the successive revisions, with the exception of the provision, in the acts last named, as to the life estate for the husband or wife.

By the act of 1824 revising the act of 1805, provision was made for the taking of the estate by the surviving husband or wife. The words “ but was acquired by purchase by the intestate,” used in the revised act in describing non-ancestral property, were omitted; and the word “ kindred,” which had been applied in the former act to both those taking ancestral and non-ancostral estates, was retained only in connection with those taking ancestral property.

The provision for the husband or wife was contained in section seven, which provided : “ That when any person shall die intestate, or who has heretofore died intestate, leaving no one of kin of the 335] blood of such intestate, or if the kin *or heirs of the blood of such intestate be an alien or aliens, the estate o’f such intestate shall pass to and be vested in the husband or wife, relict of such intestate ;” provision being made for the alien heir to appear within a time prescribed, and prosecute his claim.

The next section provides : “ That when any person shall die intestate, having-title to any real estate in this state, and there shall be no person entitled to inherit the same by the provisions of this act, the said real estate shall escheat to and vest in the state.” The husband and wife are here ranked as persons who inherit the estate before it can escheat; and are thus, in a certain sense, constituted heirs, not in right of blood, but as persons who take the estate, in lieu of kindred, by act of law, in right of the marital relation that had existed between the suiwivor and the intestate.

The seventh section of the act of 1831 was the same as the seventh section of the act of 1824; and the eighth section of that act, like section eight of the act of 1824, provided that if there was no person entitled to inherit the estate by the previous provisions, it should escheat.

In the Lessee of Little et al. v. Lake et al. (8 Ohio, 290), the lessees of the plaintiff claimed as heirs of a widow who inherited the,lands in controversy from her deceased husband, under the 7tb section of the act of 1831; and the distinction is recognized between those, under the statute, who are heirs in right of blood, and husband and wife who are. made such to each other, but not in right of blood. In commenting upon the statute it is said in the opinion that “ the only contingency upon which the widow becomes heir is mentioned in the 7th section, and is where there is no heir of the blood, of the intestate.”

The fact that the estate had been inherited by, or, which is the same thing, that it descended to the intestate, did not make it ancestral property under the act of 1824, nor the act of 1831.

The only persons who could have inherited under ihese acts, were kindred, and husband and wife. The latter, it is true, took only on failure of kindred, and if an estate thus cast upon the surviving, husband or wife, dicl not pass as non-ancestral *undcr the [336-second section, it could mot pass under the first, for want of persons-qualified to take under that section, and it would, consequently, have escheated. But where a wife inherited an estate from an in.testate husband, there was a descent from the husband, and the latter became as to the estate, in a certain sepse, the’, ancestor of the wife, but the descent was not such, nor was he such an ancestor* as was contemplated by the section of the statute which defined and. prescribed the course of ancestral property.

Thus in the ease of Lessee of Little et al. v. Lake et al.J already, referred to, the estate, which was admitted to have been inherited by the wife from the husband, was evidently regarded as passing to her kindred as non-ancestral, under the second section; and thorxgh the' estate had been inherited by her, it was not for this-reason considered as ancestral property to be controlled by the first, section as an estate as to which there was no k-indred of the husband capable of inheriting.

In ascertaining whether an estate passed under the first or under the second section, the controlling question, under the act of 1831,. was not, and is not now, whether the intestate took the estate in the capacitj of heir; but, whether the estate, if it came by descent, must not, in order to come within and pass under the first section, have come to the intestate in right of- blood?

In the act of 1853 (3 Curwen, 2270), and in the amendatory sections 1 and 2, of the act of 1857, the classification, and course of descent of ancestral and non-ancestral property, is the same as, in. the act of 1831, except as to the new provisions made for the surviving husband or wife.

The provision in the seventh section of the act of 1831 in regard to aliens was omitted, and the remaining part of the section providing for husband and wife, and the eighth section providing for -escheat, were continued and made to form the third section of the .act of 1853. In this new section the husband and wife were not -ranked as heirs.

But an estate thus acquired, would, of course, descend as nonaneestral property, as it would have done under the act of 1831, 387] where the surviving husband or wife taking the ^estate under similar circumstances, was referred to as inheriting it.

The third section of the act of 1853 became inoperative and was superseded by the amendatory second section of the act of 1857, in respect to the taking of a non-aneestral estate by the surviving husband and wife. For the estate of inheritance which the survivor took, under the third section, on failure of kindred, by section two, as amended, he or she takes in preference to kindred, and next after lineal descendants.

Yiewed in the light of the former acts of which the act of 1857 is a revision, does the first section of that act embrace and regulate the, descent of an estate vested in a husband or wife under the sec- • -ond section ?

The first section provides :

“ Sec. 1. That when any person shall die intestate, having title -or right to any real estate or [of] inheritance in this state, which title shall have come to such intestate, by descent or devise, or deed ■of gift from any ancestor, such estate shall descend and pass in parcenary, to Ms or her kindred, in the following course:

“ 1. To the children of such intestate, or their legal representatives ;

“ 2. If there be no children or their legal representatives living, the estate shall pass to and vest in the husband or wife, relict of such intestate, during his or her natural life;

“ 3. If such intestate leave no husband or wife, relict of himself