
    DESCENT OF PROPERTY.
    [Common Pleas Court of Hamilton County.]
    Albert Eichenlaub v. William Heschong et al.
    Decided, June, 1907.
    
      Wills — Descent and Distribution — Property Descending by Devise Taken Per Stirpes.
    
    Where a testator left his estate to his widow with the remainder to her heirs, and the widow had children by a former husband and at her death these children became her heirs, the estate goes to them by devise and not through an intestate, and they take per stirpes and not per capita.
    
   Peleger, J.

The testator, William Baumgarten, left an estate to his widow and after her death one-half to the heirs. The widow had three children of a former husband. One of these children died before the testator, leaving two children, and the other two children died before the mother or the widow. One of these left three and the other four children.

The question at issue is whether all of these grandchildren, being of an equal degree of consanguinity to the deceased widow, took the estate per stirpes or per capita. Section 4165, Revised Statutes, provides that when all of the descendants of an intestate are of an equal degree of consanguinity to the intestate, the estate shall pass to such persons in equal parts no matter how remote from the intestate.

Henry Baer, for plaintiff.

Fred. Bertram, for defendants.

On the one hand it is claimed that the grandchildren are all of an equal degree of consanguinity to the deceased, and that therefore they take per capita. On the other it is insisted that the statute has reference only to intestate estates, and not to remainders arising out of testamentary devises, and that this is a devise and not -a remainder. Defendants sought to amplify this argument by technical defenses of a contingent remainder. In Parsons v. Parsons, 52 Ohio St., 470, 485, it is said by Judge Shauck that, in the absence of a change in the statute, even inheritances by representation according to the general course of decisions must be per stripes, so that the rights of representatives may equal but not exceed those of their principal. It is clear therefore that the estate did not come to these grandchildren by inheritance through an intestate. The word “heirs” is a description by which they succeed the devise in the will. It is, nevertheless, a devise from William Baumgarten and not through the descent of Sophia Baumgarten. Section 4165, Revised Statutes, distinctly provides that it has application only to intestate estates. As this is not an intestate estate, that section does not cover the case at bar.

Inasmuch as the general rule at common law therefore is, that representatives take per stripes instead of per capita, these grandchildren take the shares coming to their respective fathers or mothers, who were children of Sophia Baumgarten, deceased, and not equally with the others.

The demurrer to the answer and cross-petition is therefore overruled.  