
    William D. Jenks and others, v. Solomon Langdon and others.
    1. In an action to enjoin waste, and for an account for waste committed, and also to recover possession, on tlie ground that the life estate of the tenant has been forfeited by the waste, in which action a final decree is taken to enjoin the waste and for such account, bnt no judgment is taken for the recovery of the land, the parties have the right of appeal, and not of a second trial.
    2. Under the act of March 14, 1853, (Swan’s Star. 321) non-ancestral lands of an intestate who died leaving no children or their legal representatives, but leaving a wife and brothers, descend to and vest in the wife for life, and, subject to the life estate, descend to and vest in fee in the brothers.
    Appeal. Reserved in the district court of Hamilton county.
    In October, 1853, Scott Jenks died intestate, without-issue, or heirs in the descending line, and seized in fee simple of two tracts of land in Hamilton county, which he acquired by purchase. He left surviving him his widow, the appellant, Eleanor Jenks, and two brothers of the whole blood, William D. Jenks and Stephen B. Jenks.
    
      On August 22, 1860, Eleanor Jenks conveyed her interest in said real estate to E. Bassett Langdon, who entered into possession of the same.
    On April 12, 1866, William D. Jenks and Stephen B. Jenks filed their petition in this case, in the court of common pleas of Hamilton county, against E. Bassett Langdon and Eleanor Jenks, setting forth these facts, and alleging among other things, “ that upon the death of said Scott Jenks, the real estate aforesaid, by virtue and operation of the laws of Ohio, then in force, descended and was transmitted by inheritance as follows: to Eleanor Jenks aforesaid, for the term of her natural life, and to the plaintiffs in fee simple, subject to said life estate of Eleanor Jenks;” that said E. Bassett Langdon had committed, and was committing waste on said premises in excavating and selling gravel, to the serious detriment of plaintiffs’ reversion to said premises; and praying, first, that said Langdon may be restrained and enjoined from further excavating, removing, or selling gravel, or committing other waste upon said premises; second, that they may recover judgment for the value of the gravel claimed to have been sold by E. Bassett Langdon, viz. the sum of $2,000; that they may recover the possession of said real estate ; and that said life estate may be adjudged forfeited and at an end because of said waste.
    The answer takes no issue upon any of the facts stated in the petition, but merely denies the legal conclusion that the reversion in fee in the lands descended to the plaintiffs, and claims that the same descended to Eleanor Jenks in fee, and not for life merely.
    In the common pleas a perpetual injunction against waste was awarded, with a decree that Langdon should account for the waste already committed. No judgment of forfeiture or for recovery of the land was rendered.
    From the judgment of the common pleas the defendants appealed to the district court, where the cause was reserved for decision here.
    And now the plaintiffs move to dismiss the appeal, on the alleged ground that the case is one in which a jury trial was ■demandable, and therefore not the subject of appeal.
    The only other question made in the case is, whether, by the statute of March 14, 1853, (Swan’s Stat. 321,) the land in controversy descended in fee to the widow, or whether she took only a life estate therein, and the reversion in fee -descended to the brothers.
    
      Hoadley and Johnson for plaintiffs :
    1. We move to dismiss the appeal for want of jurisdiction, on the ground that the defendants’ remedy was by demand for second trial, or by writ of error.
    Three separate and distinct causes of action were united in the petition, viz. : 1. For injunction to stay waste. 2. To recover the damages to the reversion by the waste already done. 3. To recover possession, on the theory that the waste forfeited the life estate. Of these, before the code, the first would have been the subject of a bill in equity ; the second, of an action on the case at law, and the third, of an ejectment. If it be said that equity will entertain a bill to stay waste and for an account, it is answered that this was not such an action, but, on the contrary, an action on the case to recover damages, united with an ejectment and equitable claim for injunction. We did not pray for discovery or account, but alleged damages which we were prepared to prove. Omit the ejectment and the equity, and there is left in the petition an action on the case for waste committed.
    This, then, is one of the cases in which, had there been an issue of fact, a second trial would have been demand-able, and no appeal could have been taken. In the absence of an issue of fact, there can be * ‘ neither an appeal nor a second trial.” Ladd v. James et al., 10 Ohio St. 437 ; Sprague, Adm'r, v. Childs, 16 Ib. 107, 112.
    2. Under the second section of the act of 1853, Scott Jenks, having died intestate, without issue, the real estate descended to the widow for life, and the reversion to the brothers of the deceased. The fatal defect in the argument for the defendants is, that it entirely eliminates the words “ during his or her natural life,” and construes the statute as if they had not been inserted. Besides, it ignores and disregards the intent of the law maker, to prefer the next of kin to the widow in the disposal of the reversion.
    It is a plain canon of construction that every word of a statute should, if possible, receive effect. Pancoast v. Ruffin, 1 Ohio, 385 ; Allen’s Lessee v. Parish, 3 Ib. 193 ; Bloom v. Richards, 2 Ohio St. 402 ; State v. Blake et al., Ib. 151.
    That the legislative intent was to prefer the next of kin to the relict, except in the bestowal of the life estate, is not only proved by the change in the act in 1857 (S. & C. 502), when the intent changed, but is distinctly decided by the-case of Birney v. Wilson et al., 11 Ohio St. 426, 433, and was repeated in Brower et al. v. Hunt el al., 18 Ohio St. 337.
    It does not seem difficult to read section 2 of the act as if the words, “ or at the death of such relict had been inserted. They were undoubtedly omitted, from inadvertence ; and to read the act as if they had been inserted, is fully within the rule acted upon in Kennedy v. Gibson et al., 8 Wallace, 506.
    Domat's eleventh rule of construction (Sedg. on Stat. and Const. Law, 284), is as follows: “ If in any law we find the-omission of something essential to it, or which is a necessary result of its provisions and requisite to give the law its full effect, we may supply what is wanting but not expressed, and extend the law to what it was manifestly intended to embrace but in its terms does not include.”
    See also: Henry v. Tilson et al., 17 Vt. 479 ; People v. Utica Ins. Co., 15 Johns. 358 ; Jackson dem. Schofield v. Collins, 3 Cow. 89; Burgett v. Burgett, 1 Ohio, 469 ; Whitney, et al. v. Webb, et al., 10 Ib. 515 ; Spicer v. Giselman, et al., 15 Ib. 341; Teaff v. Hewitt, 10 Ohio St. 543 ; Tracy v. Card, 2 Ib. 441 ; Slater v. Gave, 3 Ib. 80, 85, 86.
    
      Aaron F. Perry for defendants :
    1. The motion to dismiss the appeal should have been, made in the district court, if made at all.
    
      2. The motion is groundless. The case is governed by the act of May 16, 1868. (S. & S. 589.) The relief prayed for in the petition depended on one point of law, viz. : on the claim assei’ted in it that the estate descended in fee to the plaintiffs. There was no issue except one of law on the asserted title of the plaintiffs. The statements of the petition showed no reason for making Eleanor Jenks a party defendant. The only inquiry of fact was as to the amount of damages. As to this inquiry, it was like the inquiry as to the amount of the note in Ladd v. James et al., 10 Ohio St. 437 ’8.
    “ A party with whom no issue is joined has nothing to require a jury to try,” &c. Sprague, Adm’r, v. Childs, 16 Ohio St. 116.
    The only real question which could be made in this case, was one which never could, under the code, in equity or at common law, have been tried by a jury. It is a strictly legal question. And the relief asked was dependent upon its decision in favor of the plaintiffs.
    This seems to me to characterise the case. An issue on the facts, bearing on either form of the relief prayed, would have been immaterial, until the question had been decided for the plaintiffs. It was not possible for either party to claim a jury to this main question in the case. The relief asked was an injunction, damages and possesion ; but injunction was the leading idea. Then following an injunction was to be a decree declaring the life estate forfeited for waste. This part of the relief also depended upon the question of title in plaintiffs, for if the law did not carry the fee to plaintiffs, there had been no waste, there could be no injunction, no damages for waste, no forfeiture, and no right of possession. In other words, the nature of the action was to obtain a construction of the statute, and a declaration of the rights of parties on admitted facts. It would not have been legally possible to deny, under oath, the allegations of the petition, and not, therefore, legally possible to make an issue for a jury.
    3. As to the merits of the case :
    
      (1.) The descent of real estate in Ohio is governed exclusively by statutory provisions.
    (2.) Where, by the act of 1853 or 1857, an estate in fee descends to the husband or wife, relict of the intestate, it is, in the hands of such relict, an estate non-ancestral.
    (3.) Whether an estate descends to the husband or wife relict, or goes to collateral relations, is a matter to be determined by the statute and not by ancient usages.
    (4.) “ The spirit of the statute must be extracted from the words and not from conjectures aliunde.” Brower v. Hunt, 18 Ohio St. 341.
    (5.) A statute which provides for descent of non-ancestral estates to collateral kindred of the intestate only when the intestate left no husband or wife relict, does not enable such collaterals to inherit when the intestate did leave a husband or wife relict.
    (6.) Where husbnnd and wife, by joint exertions, have acquired an estate not ancestral, and one of the two dies, the other surviving, there is no principle of equity or justice in forcing a construction of the statute so as to give the estate to collaterals in lieu of the survivor, if the language of the act does not so give it.
    (7.) Scott Jenks died intestate, without lineal descendants, and seized of an inheritance in real estate, not ancestral, leaving a widow, and brothers of the whole blood, while the statute of March 14, 1853, was in force. The second section of the act gave the estate to his widow during her natural life. It provided for no inheritance by collaterals, unless in cases where “intestate left no husband or wife relict of himself.” The inheritance not being provided for by the second section, was carried to the widow by the third section.
    Williams on Personal Property (3d Am. ed.), *7, 236, 237, pp. 59, 332, 333. Price v. Price's Adm’r, 11 Ohio St. 290 ; Birney v. Wilson, 11 Ohio St. 426.
    
      E. Bassett Langden prepared a brief for defendants when the case was in the common pleas.
    That brief has been submittecl here, and maintains, that the case must be governed by the statute law in force at the death of Scott Jenks, in October, 1853, (2 Bla. Com. 211; Birney v. Wilson et al., 11 Ohio St. 426-434; Drake v. Rogers, 13 Ohio St. 21,) being the act of March 14, 1853, (Swan’s Rev. Stat. 321,) and that, by its operation, at the death of Scott Jenks, his estate passed to his widow, Eleanor Jenks, in foe simple. In the argument the following authorities are cited : St. John v. Northrup, 23 Barb. 26; Whitney v. Whitney, 14 Mass. 88; Birney v. Wilson, 11 Ohio St. 427; Packer v. Sunburg, 19 Penn. (7 Harris) 211; In re Murphy, 3 Zab. 180; S. & C. stat. 502, 505, sec. 22; Lewis v. Eutsler, 4 Ohio St. 354; 1 Bla. Com. 62; Sedgwick on Constr. Stat. Law, 243, 293; Dwarris on Stat. Law, 560-598, 679; Waller v. Harris, 20 Wend. 555; Jackson v. Lewis, 17 Johns. 475, and cases cited; McClusky v. Cromwell, 11 N. Y. (1 Kern.) 593, and cases cited; Troup v. Smith, 20 Johns. 33; McIvor v. Bogan, 2 Wheat. 29; Bank v. Dulton, 9 How. U. S. 522; Coffin v. Rich, 45 Me. 507; Weaver v. Gregg, 6 Ohio St. 547-551; Hyatt v. Pugsley, 23 N. Y. 285, 286; Augustus, &c. v. Sea Salt &c., 3 Met. (Ky.) 155; 2 Roper on Legacies, 328, 377; Hempstead, 477; Bidwell v. Whitaker, 1 Mann, (Mich.) 469; U. S. v. Warner, 4 McLean, 463; Williamson v. Williamson, 18 B. Mon. 368.
   Welch, C. J.

It is quite clear to us that the defendants-had the right to appeal. This is not an action for the recovery of money, nor for the recovery of specific real property, within the meaning of the civil code. It is the equivalent of the old bill in chancery to stay waste. The relief by way of compelling an account for waste already committed was incidental to such a bill, and always, in a proper case, formed part of the decree. The claim to recover the land does not make the case one for a jury. As to the prayer for that form of relief inserted in the petition, I think it may be well said, as was held in the case of Corry v. Gaynor, decided at the present term, that it is a prayer without any allegation of facts to support it. I am not aware that by the law of Ohio a life estate, other than dower, is forfeited by the commission of waste thereon by the tenant for life. In the absence of statutory provision, contract, or devise, I am not aware that such is now the law in any of the States. This question, however, we need not now decide,, and do not decide. For, admitting the forfeiture, and that this was a misjoinder of two actions, uamely, an action to-stay waste and compel an account, and an action to recover real property, it ceased to be two actions at the time of entering the final judgment or decree. In the action to recover the land there was no judgment to appeal from. The caso stood at the time judgment was taken, as if that branch of it had been stricken from the petition, or discontinued.

Upon its merits the case involves the single question, upon whom did the fee in the laud descend ? Did the land descend to the wife for life only, and the fee, subject to the life estate, descend to the brothers of the intestate ? Or did the absolute fee vest in the wife ?

The intestate died in October, 1853, and the descent was, therefore, governed by the act of March 14, 1853. (Swan’s Stat. 321). The first section of the act prescribes the course of descent for ancestral real estate the second section prescribes the course of descent of non-ancestral real estate, which is the character of the property in controversy here and the third section is general, relating to both descriptions of real estate.

By the first section ancestral real estate.is made to descend as follows :

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

2. If there be no children or their legal representatives, then to the brothers and sisters of the blood of the ancestor from whom the estate came.

3. If there be no such brothers or sisters, then to the ancestor from whom the estate came by deed of gift.

4. If the ancestor from whom the estate came be dead, then to the “ husband or wife, relict of such intestate, during Ms or her natural life.”

5. If such intestate leave no husband or wife, relict of himself or herself, or at the death of such relict, the estate shall pass to and vest in the children of the ancestor from whom the estate came, &c.

By the second section non-ancestral real estate is made to descend as follows :

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

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

3. If such intestate leave no husband or wife, relict of himself or herself the estate shall pass to and vest in the brothers and sisters of the intestate of the whole blood, or their legal representatives.

4. If there be no such brothers and sisters of the whole blood, then to the brothers and sisters of the intestate of the half blood.

5. If there be no such brothers or sisters of the half blood, then to the father of the intestate, or, if he be dead, to the mother.

6. If the father and mother be dead, then to the next of kin to, and of the blood of the intestate.

The third section is as follows :

“When any person shall die intestate, having title or right to any real estate, and their shall be no person living entitled to inherit the same by the provisions of this act, the said real estate shall pass to and be vested as an estate of inheritance in the husband or wife, relict of such intestate, ■and if there be no such relict, it shall escheat to and be vested in the State of Ohio.”

One thing is manifest upon the face of this statute, and that is, that some mistake was made in drafting the 2d and 3d clauses of its second section. Except upon that supposition it admits of no. sensible or consistent interpretation. Either the words “ during Ms or her natural life” were by mistake inserted in tbe 2d clause, or tbe words “or at the death of such relict ” were by mistake omitted from the 3d clause. Which of these was the mistake actually made, or is the one legitimately to be presumed, is the real question in this case, We are compelled either to strike from the second clause the words 11 during his or her natural life,” or else to interpolate the words “ or at the death of such relict,” or equivalent words, into the third clause. We are compelled to do so, or adopt the theory that the intention was to pass the life estate alone, and leave the fee in abeyance, which theory we deem wholly inadmissible. The sweeping language of the third section, whereby all the intestate’s right and title to real estate not otherwise inherited shall pass to the husband or wife, or to the State, forbids .any such theory of construction. Besides, to suppose that the legislature intended, in this particular instance, namely, where the estate was non-ancestral and where a wife or husband should happen to survive the intestate, that only a life estate should descend, the fee remaining without any owner, while in all other cases the whole estate should descend and vest in some one, is little less than to stultify the law making power. We are bound to hold that the intention was to pass and vest the entire estate, either by giving the whole to the husband or wife, or by vesting in the husband or wife a life estate, and, subject thereto, giving the fee to the brothers and sisters. If the former was the intention, then the words in the 2d clause, limiting the estate to life, could not have been intentionally inserted. No admissible reason can be assigned why these words of limitation should be intentionally inserted in that clause, and then nullified in the third section. If the husband or wife was to have the whole estate, why not give it all at once, and not give her the life estate in one section of the statute, and then, without anything intervening which at all qualifies the estate, or changes the rights of the parties, give the reversion in another part of the statute. To us it is quite evident, that if the intention was to pass the fee to the husband or wife, the words limiting the estate to life were inserted by inadvertence. On the other hand, it seems equally clear, that if it was intended to give to the husband or wife a life estate only, and to vest the fee in the brothers and sisters, words equivalent to those contained in the 5 th clause of the first section, “or at the death of such relict,” must have been omitted by like inadvertence. We are of opinion that the latter was the mistake actually made, and that the intention was to give the husband or wife a life estate only, and to give the fee to the brothers and sisters, subject to the life estate. We are inclined to this opinion, mainly, because the mistake here supposed is more latent, and, therefore, better calculated to escape detection than the mistake involved in the other theory. No one can read this act, no matter how cursorily, with the expectation that it was designed to give the husband or wife an absolute fee in non-ancestral land, without, being struck at once — at first sight — by these words, during natural life, in the 2d clause of the second section. On the other hand, it is not only true that the act might be read with the expectation that the husband or wife was to have only a life estate, and that the brothers and sisters were to take the fee subject thereto, without detecting the omission •which we suppose, but it is true that many persons, and they lawyers and judges, have so read it. The mistake supposed by us is hidden, as it were, while the other is obvious and palpable. True, the draftsman or copyist might as readily fall into one of the mistakes supposed, as into the other. But not so with the reader or reviewer of the draft or copy. He would discover the one mistake at first sight, while he would have to read closely, and perhaps re-read, before he would detect the other. The one is latent, the other patent. They are alike easy of commission, but not alike easy of detection.

By the law as it stood before 1853, the wife took only dower in her husband’s - real estate. By the act of 1853, it seems to us to have been the intention of the legislature simply to advance her to a full life estate, and it was not until the passage of the act of 1857 that she was first given the estate in fee, to the exclusion of the brothers and sisters of the intestate. Such we believe to have been the opinion ac-4uiesced in by the legal profession and the community to such an extent as entitles it to be regarded, to some extent, as a rule of property. This opinion doubtless rests in part upon dicta found in the cases referred to, (Birney v. Wilson, 11 Ohio St. 426; Brower v. Hunt, 18 id. 337); but it rests mainly, as we apprehend, in the fact that such is the prima facie purport of the statute, the impression which its first reading naturally and almost invariably inspires.

Judgment for plaintiffs, for injunction and account.

White, Day, McIlvaine and West, JJ., concurred. 
      
      Ante, p. 277.
     