
    Garver et al. v. Garver et al.
    (Decided December 12, 1932.)
    
      Mr. T. B. Mateer, for plaintiffs in error.
    
      Mr. C. H. Wood, for defendants in error.
   Sherick, J.

It is claimed herein that the trial court erred in sustaining a demurrer to the petition, which states in substance that Sylvester Garver died intestate on December 25, 1931, without issue, but survived by his spouse, Lula Garver, who also died intestate on April 16, 1932, survived by her two children by a former marriage, who are her only heirs at law, and who are defendants herein. The children of a deceased brother are also named as defendants. The plaintiffs are brothers and sisters of Sylvester Garver.

The petition recites that Sylvester Garver’s estate has been fully settled, and that he possessed a personal estate only, of a net worth of $3,500, which passed into the possession of Lula Garver, as administratrix of his estate, of which she died seized.

It is alleged that the plaintiffs are each entitled to a one-sixteenth part thereof; the nephews and nieces to a like fractional part; and the two children of the deceased spouse each to an undivided one-fourth part. The prayer of the petition is for partition.

It is the contention of the plaintiffs that the spouse relict inherited under the law, Section 8578, General Code, as enacted prior to January 1, 1932 (111 Ohio Laws, 32), and that plaintiffs inherit by virtue of Section 10503-5, General Code, which went into effect on January 1,1932 (114 Ohio Laws, 340). They make the further claim that the word “issue,” appearing in this section, refers only to the issue of that married union, that is the linion of Sylvester Garver and Lula Garver, and not to the issue from some other marriage. It is the claim of the heirs at law, or the issue of Lula Garver, that they inherit the entire estate by virtue of Section 10503-4, General Code.

Considering now the question of the meaning of the term “issue,” as it appears in Section 10503-5, General Code, a re-enactment of Section 8577, we quote therefrom that part of the statute drawn in question here: “When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such relict from any deceased spouse, by deed of gift, devise, bequest or descent, then such estate, real and personal, except for the intestate share of the surviving spouse, if any, of such relict, shall pass to and vest in the children of the deceased spouse from whom such real estate or personal property came, or the next of kin of deceased children.”

That part of the section from its beginning to the word “issue” has undergone no change by its recent modification. We call attention to this fact for a preface to the remark that whatever construction the word previously bore it should now bear.

If the word “issue” is susceptible of the limited construction contended for, we note an unnecessary and superfluous word thereinafter appearing, that is, the word “descent.” We think the Legislature purposely injected and employed the word “descent.” Now if the plaintiffs’ contention is right, and Sylvester Garver had died intestate and seized of a personal estate, and had left issue of his marriage with Lula Garver surviving him, they would have inherited and the surviving wife would have had but her widow’s share1 in his estate. If such had been the situation in the developed assumption, as the plaintiffs would now develop it, the word “descent” would be meaningless. This the Legislature did not intend.

The word “issue” therefore must have embraced a larger understanding, that is that the spouse relict might have issue other than from her marriage with the deceased consort, from whom she inherits. In other' words she might be survived by the issue of an earlier or later marriage. In the case of Miller, Admr., v. Shepard, 29 Ohio App., 22, 162 N. E., 788, it was held that a legally adopted child by the spouse relict of a former marriage could inherit property which came to the spouse relict from his'second wife, who died intestate and childless, to the exclusion of the second wife’s brothers and sisters. The opinion in this case recites the history of this legislation. It is deserving of counsels’ consideration. The second paragraph of the syllabus states the law applicable in this instance. It says: “Property inherited from a deceased spouse under subdivision 2 of Section 8574, General Code, descends from and not through such surviving spouse, under Section 8577, General Code, upon his or her death intestate.”

In the instant case, the children of Lula Garver inherited under subdivision 1 of Section 10503-4. Section 10503-5, General Code, can have no application in this case, for, by its very terms, it may not be invoked unless the relict of the deceased husband died without issue.

The petition is further objectionable in that if the plaintiffs’ claim was true, Lula Garver’s brothers and sisters should have been the parties defendant, and not her issue, who would have no .interest in their mother’s estate.

The judgment is therefore affirmed.

Judgment affirmed.

Garver, P. J., and Lemert, J., concur.  