
    DESCENT AND DISTRIBUTION.
    [Madison (2nd) Court of Appeals,
    July 25, 1913.]
    Allread, Ferneding and Kunkle, JJ.
    Treat v. Bessey, et al.
    Nonancestral Real Estate Descends per capita to Nephews and Nieces as Next of Kin and by Representation to Issue of Deceased Niece.
    Where an ancestor dies seized of nonancestral real estate, leaving as next of kin nephews and nieces and issue of a deceased niece, the inheritance descends per capita to the nephews and nieces — the issue of the one deceased taking a share by representation.
    [Syllabus by the court.]
    Appeal.
    
      David K. Watson and Chris. A. Weldon, for Lincoln A. Weldon and Percy Howard.
    
      M. J. Sanford and George A. Allen, for Howard H. Treat, Wm. A. Howard and Belle Bessey:
    Cited and commented upon by the following authorities: Ewers v. Follín, 9 Ohio St. 327; Parsons v. Parsons, 52 Ohio St. 470, [40 N. E. Rep. 165] ; Walker, Am. Law (10 ed.) p. 410, Sec. 3; 4 Kent, Commentaries p. 375; Dutoit v. Doyle, 16 Ohio St. 400; Goff v. Disiennet, 33 O. C. C. 234 (14 N. S. 557); 14 Cyc. 53.
   ALLREAD, J.

Marion Howard on January 1, 1912, died intestate, without issue and unmarried, seized in fee simple of nonancestral real estate consisting of 1128 acres of land in Madison and Champaign counties, and leaving as nest of kin Lincoln H. Weldon, only child of Mary Howard Weldon, a deceased sister; Percy Weldon, only child of Clinton Howard, a deceased brother, and William A. Howard, Belle Bessey, Mary Arter and Howard H. Treat (son of Emma F. Treat, deceased),-children and representatives of Napoleon Howard, a deceased brother.

Lincoln H. Weldon and Percy Howard each claim one-third of the estate by right of representation. The other nephews and nieces and the representative of the one deceased claim that the distribution should be in equal shares.

The sole question, therefore, is whether the estate descends to the nephews and nieces per stirpes or per capita.

The claimants under the per stirpes theory rest upon Subd. 3 of Sec. 8574 G. C., providing that in the absence of issue and husband or wife relict “the estate shall pass to the brothers and sister of the whole blood, and their legal representatives. ’ ’

The per capita claimants rely upon Sees. 8581, 8582 and 8583 G. C., which are as follows:

“Section 8581. When all the descendants of an intestate, in a direct line of descent, are of an equal degree of consanguinity to the intestate, whether children, grandchildren, or great-grandchildren, or of a more remote degree of consanguinity to such intestate, the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be.
“Section 8582. If some of the children of such intestate are living, and others are dead, the estate shall descend to the children who are living, and to the legal representatives of such as are dead, so that each child of the intestate who is living will inherit the share to which he or she would have been entitled if all the children of the intestate were living, and the legal representatives of the deceased child or children of the intestate inherit equal parts of that portion of the estate to which such deceased child or children would be entitled if such deceased child or children were living.
“Section 8583. The provisions of the next preceding section shall apply in all eases in which the descendants of the intestate, entitled to share in the estate, are of unequal degree of consanguinity to the intestate, so that those who are of the nearest degree of consanguinity, will take the share to which he or she would have been entitled, had all the descendants in the same degree of consanguinity with him or her, who died leaving issue, been living.”

Standing alone, clause 3 of Sec. 8574 would probably justify the per stirpes distribution, but we think it clear that Sec. 8574 must be construed in harmony with Secs. 8581, 8582 and 8583, and that See. 8574, being general, yields to Secs. 8581, 8582 and 8583 in cases falling within the special provisions of the latter sections.

It is argued with great earnestness by counsel for the per stirpes claimants that the sections of statute last cited should be confined and limited to lineal issue and not extended to collateral descent.

We are not, however, called upon to construct an interpretation of this statute as of first impression. We have carefully compared Secs. 8574, 8581, 8582 and 8583 G. C., with the corresponding sections of the act of 1853 and find no material difference in respect to the present controversy.

The case of Ewers v. Follin, 9 Ohio St.; 327, decided under the act of 1853, is parallel and decisive. In that case it was held: . “By the provisions of Sec. 10 of the act regulating descents, passed February 24, 1831, when an estate descended to nephews and nieces, legal representatives of brothers and sisters, no brother nor sister of the intestate surviving, the nephews and nieces took per capita; and if a nephew or niece had died before the intestate, leaving children, such children took per stirpes the share of the deceased parent. This rule has not been altered by Secs. 6, 7 and 8 of the present act regulating descents. ’ ’

Gholson, J., in the opinion, in analyzing Sec. 6 of the act of 1853 (now Sec. 8581 G. C.), in respect to collateral descent, says: “There is some ambiguity arising from the language employed in See. 6 which has probably led to the reservation of the question in this case. It might, upon, a first inspection of that section, be supposed that the ‘descendants’ to which it refers, were the lineal descendants only of the intestate, such as grandchildren and great-grandchildren; but a more careful examination shows the contrary. It will be seen that in Sec. 6 children as well as grandchildren and great-grandchildren are named, which, if the lineal descendants of the intestate alone are intended, would have been unnecessary, the children of - the intestate having been provided for in Sec. 5. The - concluding language of that section also shows, that descendants, in the sense of those to whom the estate descends, were in the contemplation of the legislature. Its provisions are-to apply ‘so that the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be. ’

“Our conclusion is, that the legislature, instead of limiting .the rule as provided in Sec. 10 of the act of 1831, intended to extend and apply it to every ease in which an estate was to be divided among a class of descendants, whether their consanguinity to the intestate be lineal or collateral.’!

It is urged that the subsequent case of Dutoit v. Doyle, 16 Ohio St. 400, is inconsistent with and practically overrules Ewers v. Follin, supra. In Dutoit v. Doyle, there were surviving children and representatives of other children deceased. It was there contended that the grandchildren took per capita in the portion of the estate not taken by the surviving children. It was, however, held by the court that all took per stirpes. This decision is not, in our opinion, inconsistent with Ewers v. Follin, but at most a limitation of Sec. 6 of the act of 1853 to cases where the descendants are all of equal consanguinity, that is, all grandchildren and their representatives, or all nephews and nieces and their representatives, and like cases. No criticism or even reference to the case of Ewers v. Follin is found in the opinion in Butoit v. Boyle, and our view that the authority of the former case over cases involving similar facts is not shaken or destroyed is confirmed by the fact that Scott, J., who wrote the opinion in the latter ease and Brinkerhoff, J., who concurred therein, also concurred in the decision and opinion in the former case. It is hardly conceivable that these eminent jurists would have overruled their former decision without some comment.

The cases of Brower v. Hunt, 18 Ohio St. 311; Martin v. Martin, 56 Ohio St. 333 [46 N. E. Rep. 981]; Mooney v. Purpus, 70 Ohio St. 57 [70 N. E. Rep. 894], and Miller v. Miller, 34 O. C. C. 43 (15 N. S. 481), are cited, but we find nothing therein inconsistent with Ewers v. Follin as applied to cases falling within the special provisions of Sec. 6 of the act of 1853 (now See. 8581 G. C.).

The case of Miller v. Miller, supra, involved the time of the vesting of a devise. The court having held that the estate vested at the death of the testator, when two of the brothers were surviving, very properly held that the estate descended per stirpes, in harmony with the authority of Dutoit v. Doyle.

In the ease at bar, there being no children or husband or wife relict, and all the brothers having deceased prior to the death of Marion Howard, leaving nephews and nieces and the representative of one deceased as the next of kin, the case falls clearly within the decision of Ewers v. Follín.

Counsel upon both sides have referred to various decided cases in other states. Some of these we have examined, but we do not deem it important to review the cases outside of the state, as we think the law of the present case is settled by Ewers v. Follin.

We have been very much interested in the presentation of this case and in the investigation of the questions involved. The case has been fully and ably argued by counsel and the labors of the court very much reduced by their efforts.

The conclusion of the court is that the estate descends per capita to the nephews and nieces, the plaintiff taking the share of his deceased mother.

Decree will be awarded accordingly.

Ferneding and Kunkle, JJ., concur.  