
    DEFINITION OF THE WORDS “ HEIRS AT LAW ” WHERE PERSONALTY IS INVOLVED.
    Court of Common Pleas of Montgomery County.
    Catherine Wilson v. Daniel W. Allaman, as Executor of the Will of Isaiah Wilson, Deceased, et al.
    
    Decided, May 29, 1917.
    
      Wills — Bequest to Heirs at Law — Must be Construed Under the Law of Descent and Distribution Where Personalty is Involved — -Widow Takes as an Heir, When.
    
    Under a bequest of one-third of my estate “to the heirs at law of my deceased brother B W,” the widow of said deceased brother shares as an heir in all personalty, including proceeds of property reduced to cash by direction of the testator.
    
      Powell Howell and E. H. & W. B. Turner, for plaintiff in error.
    
      Carr, Allaman, Reiter & Murr, for defendant in error.
    
      
       Affirmed by the Court of Appeals, Wilson v. Allaman, Eccer., 27 C.C. (NS.), 282.
    
   Martin, J.

In this ease the plaintiff asks the court to construe item 7 of the will of Isaiah Wilson, deceased. An examination of a copy of the will shows that this will was executed by Isaiah Wilson January 4th, 1906; that, according to the petition, on January 18, 1912, Isaiah Wilson died, and that the will was probated in the Probate Court of Montgomery County, Ohio, February 19, 1912; that Elizabeth D. Wilson, the widow of Isaiah Wilson, died on®the 5th day of February, 1915.

Inasmuch as there is nothing in the other items of the will bearing upon item 7, which the court has been .asked to construe, the court will only quote item 7, which reads as follows:

“Should my said wife not survive me, or upon her death, I authorize, and direct my said executor to reduce all my estate to cash, and after the payment of costs and expenses, to distribute the same as follows: One-third to my sister, Mary Jane Hamilton, or heir heirs at law; one-third thereof to the heirs at law of my deceased brother, Ephriam Wilson; one-third thereof to the heirs at law of my deceased brother, Bartholomew Wilson. ’ ’

The question before the court is, what did Isaiah Wilson mean when he used the phrase ‘ ‘ one-third thereof to the heirs at law of my deceased brother, Bartholomew Wilson”? •

All parties to this action agree that authorizing and directing his executor to reduce all his estate to cash would leave it in the form of personalty, and that the executor would be guided in distributing the same by the law governing personal property.

There is no question but what the law, not only in Ohio, but in all other states, so far as the court has examined the cases, holds that the estate to be distributed in this ease should .be considered as personal property.

So, then, considering that personal property alone is to be distributed, the question arises for the consideration of the eourt as to who are the heirs at law, or rather, who were the heirs-at law, of Bartholomew Wilson, deceased, at the time when Elizabeth D. Wilson, widow of Isaiah Wilson, died, she having died after the decease of the testator.

Narrowing the question still further, was Catherine Wilson, the plaintiff in this case, an heir at law of Bartholomew Wilson, being his widow, considering the fact that Bartholomew Wilson had children living at the time of the death of testator’s widow, to-wit, Jennie Hussey, Edward Wilson, Alice Wilson and Sarah Sprague ?

All parties admit that if it had been real estate that was to be divided among the objects of Isaiah Wilson’s bounty in item 7, she was not or would not be an heir at law of Bartholomew Wilson, deceased. But since personalty alone is to be distributed in this case, the plaintiff claims she is and was an heir at law, as intended by Isaiah Wilson when this will was drawn, and' when Isaiah-Wilson’s widow died. In the 79 O. S., page 358, in the Case of Barr v. Denny et al, in part of syllabus 2, we find that James Barr made use of the following language.in his. will:

"After the death of my wife I desire that the whole of my property, both real and personal, be sold by my executor, and after expenses are paid to be distributed equally to my legal heirs.” In the third syllabus of this ease we read as follows:
‘ ‘ In such ease the direction to the executor to 'pay or distribute to the testator’s legal heirs, confers a contingent interest which does not vest until the period of distribution, and a direction to distribute equally ‘to my legal heirs’ is equivalent to a direction to make distribution in accordance with the statutes providing for descent and distribution.”

The question decided in this case was when the interest of James Barr’s legal heirs vested. It appears that Margaret Maud Barr, daughter of the testator, James Barr, married the defendant, Henry H. Denny, about eleven years after the death of the testator, and that about two months after her marriage and before the death of the wife of the testator, she died, leaving no issue. The court held that since she died before any interest vested, as mentioned in the item of the will in syllabus 2, Denny was not entitled to an eighth interest of the personal property to be distributed.

These facts are not in point as to the case at bar; but the court has cited this case for the reason that the third syllabus gives a definition of who the legal heirs of James Barr were under the circumstances. The item of James Barr’s will, found in syllabus 2, is substantially the same as the item 7 in Isaiah Wilson’s will, so far as reducing the real and personal property to cash is concerned, and in-so far as the use of the word "distributed” is concerned, the only difference being that the distribution was to be made to James Barr’s legal heirs or heirs at law, instead of the legal heirs, or heirs at law of James Barr’s brother. And, as has already been stated, in the latter part of syllabus 3 the Supreme Court holds as follows:

"And the direction .to distribute equally ‘to my legal heirs’ is equivalent to a direction to make distribution in accordance with the statutes providing for descent and distribution.”

In the 11 O.C.(N.S.), page 274, in the case of Youngblood v. Youngblood case in which personal property as well as real estate was involved, in the second syllabus, we find the following definition for legal -heirs: .

“'The expression ‘legal heirs,’ as used by the testator, has a well known definite meaning in the law, to-wit: those upon whom the law would cast the estate if the testator had died intestate.”

Anrj on page 279, beginning at the bottom of the page, Judge Donahue, now on our Supreme Bench, gives the following definition of heirs:

‘ ‘ The legal definition of the word heirs is, those who take the estate of an intestate under’the statutes of descent and distribution;-and all persons who do take any portion thereof under this statute, no matter how small it may be, is an heir in the legal contemplation of the word.”

It is true that the facts in neither one of these cases, so far as a widow being an heir is concerned when children survive, is in point. But as the case of Barr v. Den-iiy gives a definition of legal heirs when personal .property is distributed, the court thinks it is in point when the words ‘ ‘ heirs at' law ’ ’ are used likewise in the distribution of personal property as provided- in the will of Isaiah Wilson.

Now this is a general definition which Judge Donahue used when personal property as well as real property was involved, and it was a special definition given by Judge Davis, late of our Supreme Court, when personal property alone was involved.

Counsel for defendant have cited the definition . given by Judge Shauck in the case of Smith v. Hunter et al, 86 O. S., page 116, which is as follows:

‘.‘The meaning of the phrase ‘her heirs at law’ which the testator used to indicate his intention has not been changed since he used it for that purpose. It-then meant, and it now means, those who by law might be entitled to succeed to the property of which she would .die. seized as of an estate of -inheritance. ’ ’ -

Now -it -may be said that -this definition would require -that those, who are to be -considered as heirs should.be those who..under our statutes of descent would take real estate 'in fee simple. And. this'might be considered' .the common law definition " of “heirs at law” or “heirs,” if it were not that in this particular ease it happened that the person who claimed to be an heir, and whom the Supreme Court found to be an heir, was not a blood relative, but was in fact an adopted child of one of the beneficiaries of the will.

An examination of the facts, as contained on page 106, shows that Smith, the testator, devised the whole of his estate, both real and personal, to trustees for the benefit of his children, two sons and two daughters. The will directed, with respect to the portions of his estate intended for the .benefit of his sons,- that the trustees should convey the same to them in fee simple upon their attaining majority; with respect to the portions• of.-his .estate intended .to be' for the benefit of his daughters, he directed that upon their arrival at age, their portion should beset apart, but should still be held by the trustees in trust, the ■rents and .-profits only to be paid to them during life, with fee simple to the heirs of his' daughters.

Now it happened that one of his daughters married one Isaac H. Kiersted, and afterwards adopted Hannah Moore Duthie as her daughter, and it was Hannah Moore Duthie whom the -Supreme Court in this case held was the heir of Mrs. Kiersted, and the term in the will which gave her this right was the following, language: “with fee simple to-the heirs of said daughters,-”- showing that the intention of the testator when he used the term “heirs” meant that it should be those who.would take real estate.

So that taking into consideration the character of the' property bequeathed or devised in these two cases decided by our Supreme . Court, and also taking into consideration the context of the will, that is, the language used, we would have to decide, that'when personal property alone is concerned, the definition given by • Judge Davis in the ease of Barr v. Denny is the meaning which the testator, Isaih Wilson, intended to give to the word “heirs” - or'“heirs at law.”

Now it is not claimed that the definition which Judge Davis gave, or Judge Donahue gave, of the word “heirs” or “heirs at law” is the primary meaning of the word “heirs” or “heirs at law,” but is the meaning of the words “heirs at law” which is based upon the statute law of the state, and is the meaning of the words “heirs at. law” especially when personal property is involved.

In this case personal property alone is involved. The courts which hold that those are heirs at law who would take under the statute of distribution, when personal property alone is involved and there is nothing in the context of the will to show a different intent, would hold that Isaiah Wilson intended and meant by “heirs at law” those persons who would have taken the personal property of Bartholomew Wilson if he had died intestate.

Now it is true that the courts of the different states have taken different views as to how a will should be construed when the term “heirs” or “heirs at law” is used in the distribution of an estate of personalty.

As standing out prominently among those which hold that the word “heirs” or “heirs at law” should not be modified in their primary meaning by the statutes of distribution for the reason that personal property alone is being disposed of, are the decisions in the courts of the state of New York. Counsel for defendant claim that in the same class with the state of New York are the great majority of the states of the Union. However, the court finds that most of the cases cited are cases in which real estate, and real estate and personal property, are involved, and in which the words used in the context of the will indicate very strongly that the testator meant those who were blood relatives taking real estate, and were not cases in which the distribution of personal property alone was involved. The only cases so cited in which personal 'property alone is concerned, are the cases of Phillips v. Carpenter, 79 Ia., page 600; Gauch v. St. Louis M. L. Ins. Co.., 88 Ill. Rep., 252, and the case of Johnson v. Knights of Honor, 53 Ark. Rep., 260. These cases will be discussed later on in this decision.

The strongest case decided , by the court of appeals in New York on the' line that the fact that personalty should not modify the meaning of “heirs” by reason of-the statutes of distribution is found in Tillman v. Davis, 95 N. Y. Rep., page 17. In this case Julia A. Gentil willed one-seventh of one-half of certain property which was considered to be personalty, to William N. Davis of Illinois, and in case of his death the same was to go to his heirs. William N. Davis died in 1878, in the state of Illinois, leaving a widow but no children or parents. The question before the court was whether William N. Davis’ nearest blood relatives or his widow were the heirs of William N. Davis, .as intended and used in the will.

The court held that the widow was not the heir of William N. Davis, although the property involved was personalty, and in determining that she wasn’t the heir of her husband, the court of appeals in discussing the meaning of the word “heirs” as intended by the testator, on page 24, gave the following definition:

“The primary meaning in the law of the word ‘heirs’ is the person related to one by blood, who would take his real estate 'if he died intestate, and the word embraces no one not thus related. It is not strictly proper to designate persons who succeed to the personal estate of an intestate. The proper primary signification of the words ‘next of kin’ is those related by blood, who take personal estate of one who dies intestate, and they bear the same relation to personal estate as the word ‘heirs’ does to real estate. 'The words ‘heirs’ and ‘next of kin’ would not ordinarily be used by any testator to designate persons who were not related to him by blood.” .

In continuing the discussion, Judge Earl substantially held that no matter what the statutes of descent or distribution in New York were that this definition should not be modified. In other words, he held that the word “heirs” means next of kin, and next of kin means only those related by blood who would take the personalty if Davis had died intestate, regardless of the laws of distribution.

Judge Earl in this case cites from six to eight opinions of the eourts of New York, and in all of them the court seems to ignore the statutes of descent and distribution, even when mentioned in the will, and simply held that the word “heirs,” when personalty is involved, refers to a class by themselves — separate and apart — regardless of the statute law of the state, as those who related by blood to the deceased intestate, would take the estate.

In other words, the courts of New York up to and including the decision of Judge Earl in the 95 N. Y. Rep. did not permit the statutes of New York to modify the original common law definition of the word “heirs” or “heirs at law,” unless it was modified in some emphatic way by the testator in the context of the' will. On page 29, however, Judge Earl begins a discussion of cases which he admits differ from his own holding. Near the top of page 29 we find the following, in discussing a decision by Lord Campbell of the English courts:

“These utterances of learned English judges give me no courage to trace the English eases through all their perplexing mazes in search of the English rule upon the subject we are now considering. Suffice it to say that that rule seems to have been evolved by holding that the word ‘heirs,’ when applied to the devolution of personal property, means next of kin, and that the words ‘next of kin’ in such cases means those who would take personal property under the statute of distribution; and thus they are held to embrace the widow. Such a conclusion is at variance, as we have seen, with the reasoning upon which the eases in this state have been decided. In a few cases in this country, in other states, it has been held that the word ‘heirs,’ when applied to personal property, means those that by the statute of distribution take the personal property in case of intestacy, and hence embraces widows.”

So that we find that the different states have apparently lined up upon different sides of the following proposition: When a testator' disposing of personal property alone, uses the term “heirs” or “heirs at law” in connection with the distribution of said personal property, does or does not the word “héirs” or “heirs at law” mean those who take under the statutes of descent and distribution, or the statutes of distribution, provided there is nothing in the context of the will outside of the fact that the property to be distributed is personal property, to show the intention of the testator?

Among those which hold that in case the word “heirs” is used in connection with the disposal of personal property alone, that the word “heirs” should be determined by the statutes of distribution, is the state of Massachusetts. In the ease of Sweet v. Dutton, 109 Mass. Rep., page 592, we find the following:

“If, then, the instrument before us were a will, the word ‘heirs’ ought, according to the whole course of the authorities, to be construed as meaning distributees, there being nothing to indicate a different meaning. The instrument, however, is not a will but a transfer of personal property; and no authority has been cited where the word has been used in such an instrument except in its primary signification. The question then arises, whether the extended signification is to be limited to wills. We think not.”

After citing a number of authorities, the court concludes as follows:

‘ ‘ In view of these circumstances, we think it is to be presumed that in this instrument the parties used the word in the same sense in which they would have used it in a will, and the property should go to the distributee.”

In the case of Kendall v. Gleason, in 152 Mass. Rep., page 462, at the bottom of the page, we read as follows:

‘‘On the death of Stillman A. Gleason the trust terminated as. to his share, which .then immediately became payable ‘to his legal heirs.’ The will contemplated a change of the real estate to personal property in the hands of the trustees, and that it should go to the heirs in the form of personal property. 'The words ‘legal heirs’ must, therefore, be construed to mean those who would take personal property under the statute of distributions. One-third of the fund held by the trustees should be paid to the heirs of Stillman A. Gleason, in the proportions of one-third to his widow, Mary E. Gleason, and two-thirds to his minor son, Benjamin W. Gleason, whose share will be held by his guardian, Albert L. Jewell.”

It will be noticed .that in this ease the testator died leaving not only a widow but a child.

In the case of White v. Stanfield et al, 146 Mass. Rep., page 424, we find the following:

“A testator devised a farm, being the only real estate described in his will, to a son, and created several independent trust funds, one of which, was for the benefit of his son, directing the trustees to ‘invest the same in such manner as he shall deem safe and judicious,’ and to ‘pay over the net income’ to him ‘during his natural life and the principal of said fund on his death to his heirs at law. ’ Each beneficiary was to receive interest out of the estate, the first payment of which was to be in advance, until his trust fund was formed, and the fund for the benefit of the son was always invested in personal securities. Held, that the term heirs at law meant next of kin, or persons entitled under the statute of distribution relating to personal estates.”

Counsel for defendants claim that there are later decisions in the state of Massachusetts which give a different definition to the words “heirs at law.” It is true that they do when these words “heirs at law” are used in connection with real estate, but they do not overrule the decisions in which personal property alone is involved and the intention of the testator does not show that he intended that the definition shall mean those who take real estate. For instance, in the case of Proctor v. Clark, 154 Mass. Rep., page 48, cited by counsel for defendants, we read as follows:

“The trust fund consisted of both real and personal estate at the time of the testator’s death, and is contemplated as including land by the will. This fact, the use of the words ‘convey in fee,’ and the use of the similar phrase, ‘ convey the same in fee to his then heirs at law’ in the fifth article of the will, which deals only with land, show that ‘heirs at law’ must be construed to mean those who would be entitled to succeed to real estate in case of intestacy.”

This statement from the 154 Mass. Rep., page 48, would apply to Judge Shauck’s definition in’ the 86 O. S. So that the rule in Massachusetts, that when a bequest of personal property alone is made by will to the heirs at law of the testator, or of any one else named in the will, the term “heirs at law”'is to include all who would take under the statutes of distribution, including the widow.

But it is contended 'by counsel for defendants that the state of Massachusetts should not be included because the widow, upon the death of her husband, is entitled to real estate in fee simple instead of her dower.

The important question involved is not whether a widow takes personal property under the words “heirs at law,” but whether those who take under the statutes of distribution, which relate to personal property alone, are to be considered as “heirs at law” when personal property is disposed of by will.

In the state of Pennsylvania we find that the courts hold with Massachusetts, although in that state the widow is only entitled to a dower interest in real estate. In the 84 Pa. St. Rep., page 241, Eby’s Appeal, the syllabus reads as follows:

“Where a testator directed the sale and conversion of his real estate into cash, to be divided between his daughter Esther ánd the heirs of his daughters Elizabeth and Mary in equal shares, the husband of Mary, the latter having died without issue, was entitled to her share of the fund so realized as the ‘heir’ of his wife as to her personal estate.”

It will be noticed that in this case the husband or wife of a party other than the deceased testator takes as heirs. In other words, the husband of Mjary, in Eby’s Appeal, would stand in the place of the widow, Catherine Wilson, the widow of Bartholomew Wilson, in the case before the court. On page 245 of this case we read as follows:

“It follows that this matter must be governed by the ordinary rule's applicable to the distribution of personal property. Such being the dase, unless a contrary intent is indicated by the will, we must construe the word ‘heirs,’ as found in that will, as equivalent to ‘representatives’ or ‘distributees.’ In such case, the husband must be taken to be an ‘heir’ of his wife as to her personal estate.”

In Compy’s Estate, 136 Pa. St. Rep., page 159, in the opinion of the court we read as follows:

“While there is some room for difference of opinion on the subject, the weight of authority is that the word ‘heirs,’ when used in a limitation of personal property to the heirs of the first taker, either substitutionally or by way of succession, is under stood as meaning those entitled under the statutes of distribution in case of intestacy. ’ ’

In Leisure’s Estate, 205 Pa. St., page 119, on page 122 of the opinion the court says:

‘ ‘ The question here for determination, is whether the husband is one of the ‘legal representatives’ of his deceased wife, within the meaning of the term as employed in the will of A. N. Berrier. If the gift had been of personalty, the answer would have been in the affirmative.”

In Hawk’s Reports, page 393, in the case of Groom, Exr., v. Herring et al, we read as follows:

“The word ‘heirs’ as here used means heirs quoad the property, and not ‘children,’ ‘next of kin,’ or ‘heirs at law.’ By it is to be understood those whom the law appoints to succeed beneficially to the property in question. The property being personalty, the court, in the next to the last syllabus, says: ‘ Therefore, the widow of the testator is entitled under the term — she being by law appointed to succeed to personal property as well as the children, all claiming under the same statute. ”

In Iredell Equity, Vol. 2, page 72, in the third syllabus, we read as follows: :•

“A testator directs that two negroes be sold, ‘and the proceeds equally divided between my legal heirs,’ Held: that in this case, the words ‘heirs’ means those entitled to distribution of 'the personal estate, and therefore includes the widow of the testator, and also the children of a daughter, who had died in the lifetime of the testator.”

. In Jones’ Equity, Vol. 1, page 114, second syllabus, in the case of Corbitt v. Corbitt, we read as follows:

“The words ‘heirs,’ when used generally, in reference to.personal property, means those who take by law or under the Statute of Distribution.”

In Lawyers’ Reports Annotated, Yol. 3, New Series, page 904, in Case-Note: . .

“While there is. consider able confusion in the decisions as. to the meaning of .the word heirs when used in an instrument to designate the persons to whom personal property is thereby transferred, given, or bequeathed, the weight of authority holds that, when the context does not explain the 'word, it means those who would, under the statutes of distribution, be entitled to the personal estate of the persons of whom they are.mentioned as heirs, in the event of death and intestacy.”

There have been a number of insurance cases decided in which the widow was held to be included as a beneficiary under the term “heirs” for the reason that since, personalty was to .be distributed those would be entitled to the fund who would take under the statutes of descent and distribution in the various states. It is true that in some of these cases the by-laws of the company, or even a policy, may contain language which may throw light upon the term “heirs” or “heirs at law,” showing that the widow is included. But the law of construction, so far as .air .insurance certificate or policy is concerned, upon the death of'the insured, is the same as the construction of wills.

In the case of Knights Templars & Masonic Mut. Aid Association v. Greene et al, 79 Fed. Rep., page 461, Judge Taft gave a very interesting discussion .of the construction to be placed, on the word “heirs,” -when used in an insurance policy or certificate, and distinguishes the law as held by the courts in New York from the law as held by the courts of Ohio. Judge Taft in his decision holds, in the first syllabus, as follows:

“Language in a.life insurance policy designating the beneficiary must,’subject to limitations of the statute or charter as to who may be designated, be regarded as the language of the insured' alone, and is to be treated as of a testamentary character,'and should receive as nearly as possible the'same construction/as if used in a will under the samé circumstances.”

' In a majority of the-cases in which a-court has been called upon to'construe the meaning of the word “heirs” 'in insurance policies, where simply the word “heirs’-’ has been used, without being modified by any other terms such as “widow” and “.‘/orphan,” the courts have held that the beneficiaries of the fund included those who would take under the statutes of distribution, and in case the statutes of distribution included the widow, the widow would take as an heir.

There are, however, three exceptions to this rule, one being the case of Phillips v. Carpenter, 79 Iowa, page 600; second, the case of Gauch v. St. Louis K. L. Ins. Co., in Vol. 88, Ill. Rep., page 252; third, Johnson v. Knights of Honor, 53 Ark. Rep., page 260.

' In all three of these cases the courts hold that under the statutes in their states the widow takes her distributive share of the personal property as dower, and, therefore, she could under no circumstances be considered an heir. As one of the reasons why she could not be considered an heir in taking personal property, when children survive, the Iowa ease states that she can not be deprived of her distributive share by will.

If the definition of “heirs,” when personal property is involved, is those upon whom the law casts the personal estate of the intestate, would the fact that the widow can not be deprived of her distributive share exclude her under that definition? Does the fact that she can not be deprived of her distributive share by will prevent her from taking her share of the personal property under the statutes- of distribution 1 It seems to this court that this is a very illogical and flimsy reason why the widow should not be included as an heir under the statutes of distribution when personal property is involved..

In the case of Gauch v. St. Louis M. L. Ins. Co. the court held that the meaning of the word “heir” could not include the widow because under the laws of the state of Illinois her distributive share of the personal estate was considered as dower, in case the insured died leaving children. It is true that in this case the court gave other reasons indicating that to a certain extent at least they followed opinions of the courts of- New York. So that the Illinois courts, in this case at least,.held that the statutes of distribution did not apply to the term “heirs” when personal property was to be disposed of.

The third case is that of Johnson v. Knights of Honor, 53 Ark. Rep.; and on page 260 we find the following:

“But since the enactment of statutes of distribution, it has often been used in gifts and bequests of personal property to designate the donee or legatee. As to its meaning when used in this connection courts are not in harmony, and there is much confusion and conflict in the decisions. No’‘useful purpose can be served by a review of the cases upon the question in this opinion. Suffice it to say, that the weight of authority holds that the word ‘heirs,’ when used in any instrument to designate the persons to whom personal property is thereby .transferred, given, or bequeathed and the context does not explain it, means those who would,'under the statute of distribution, be entitled tó the personal estate of the persons of whom they are mentioned as heirs in the event of death and intestacy.”

In this ease the court held that the widow was not an heir in case there were children surviving, because the statute, of distribution gave to the widow her share of the personal property as dower in the state of Arkansas. By this language it is implied that the court would .have held the widow was an heir if her distributive share had not been denominated as dower under the statute of that state. In England, before the statutes of Edward II, personal property escheated to the king, and consequently there were no heirs or next of kin to take the same. Since that time the English courts, as well as many of the courts of the United States, have held that when the term “heirs” is used in connection with the distribution of personal, property alone, and there is no modifying language used which might apply to the term “heirs,” the word “heirs” or “heirs at law” was construed to mean those who took under the statutes of descent and distribution.- And among the exceptions to this rule three from Iowa, Illinois and Arkansas are based mainly on the ground that the widow took her share of personal property as dower under the statutes of those states.

. The court can not see the reason for that rule as given in those states, when applying to an insurance policy or a will, because the widow takes personal property just as absolutely and completely as the surviving children. A complete answer to the decisions in those three states on this contention will be found in the 11. O. S., page 1, hereinafter cited in this decision.

The common law definition of “heirs” was a definition which was largely created by the courts of England. According to "Webster’s and the Standard Dictionaries, the origin of the word is, uncertain, and neither dictionary attempts to give the original meaning of the word “heres,” Latin origin. The Cyclopedia Británica, in discussing the word “heirs,” traces its origin to the Latin word “heres,” and says that it originally meant grasping, or,, in the verbal form, “to grasp.” The original Greek and Sanscrit gave it the meaning of hand.

So that the meaning of blood relation, and those Avho take real estate seem to have been injected into this word by the courts of England, and after the English Parliament, in the time of Charles II, provided for the distribution of personal property Avhereby the wife was to receive one-third of said personal property absolutely, the courts of England began to eject the requirement of blood relation and ability to take real estate out of the word when personal property was involved.

The courts of many of'the states of the United States have followed suit, but a considerable number of them still retain the old meaning in spite of the fact that the reasons for said meaning no longer prevail as to personal property.

Now, coming back again to the state of Ohio, I have already given the definition as given by the coui’t in '79 O. S., in which the legal definition of the word “heirs” is, “those who take the estate of an intestate under the statutes of distiibution when personal property is involved.” But we find that this is not the only decision indicating the trend of the courts in the state of Ohio, unless there should be something in the context of the will outside of the character "of the property to detérmine the definition of the word “heirs” or “heirs at law.”

We find that the courts of this state have’ - from the very beginning, sought to modify the old common'law definition of-the word'“heirs,” and in doing this they had recourse to the statutes' of descent and distribution.' A typical case is that of Weston v. Weston, 38 O. S., decided by Judge Mcllvaine, in which hé attempts to determine the meaning'of the word “heirs”; and we find that Judge Mcllvaine in determining this meaning, because there was nothing in the context of the will itself to’ change the meaning, had recourse not to the old worn-out definition given by the English courts, when it was applied to real estate, and real estate alone descended to others than the king, but to the statute of descent and distribution. And applying the rules, he immediately eliminated the requirement of blood relative, and found that the widow was intended by Washington A. Weston,' the testator, to be his heir, although in that case there were no children surviving.

This decision, together with other decisions of the Ohio courts, show that the Ohio courts have created the definition of the word “heirs” out of our statutes of descent and distribution; or, if they have not created the definition, they have so modified the old common law definition as to make it conform to our statutes of descent and distribution, until we have Judge Donahue giving as the legal definition of the word “heirs,” “those who take the estate of an intestate under the statutes of descent and distribution.”

As has already been stated by the court, Judge Davis gave a definition which, so far as the condition of the estate and the use of the words “distributed” and “heirs at law” are concerned, is exactly in line with the case at bar. That is, that the use of the words “legal heirs” in that case is equivalent to a direction to make distribution in accordance with the statutes providing for descent and distribution.

But, contends the counsel for the defendants in this case, this definition might apply provided the heirs at law were the heirs at law of Isaiah Wilson, instead of the heirs at law of his deceased brother, Bartholomew Wilson. In that case, of course, the widow of Isaiah Wilson would take her distributive share of the personal property regardless of the will, and would have taken her dower in the real estate, unless she chose to elect under the will. Of course, upon that supposition it was necessary to draw a will which would require that Isaiah Wilson’s estate should be reduced to cash immediately after his death, and then provided the wife elected to take under the will she would be given her distributive part of the cash in lieu of her dower in the real estate and her distributive share of the personal estate. If the words “heirs at law” are modified to mean those who take under the statute.of distribution when personal property is to be distributed, why should not the words be so modified when the heirs of some one else are designated as taking personal property as well as the heirs of the testator? "What is it that changes the meaning of the word from its primary meaning? It is the.fact that personal property is to be distributed, and that fact alone controlled in the cases cited. ,'The question remains, who- are those, who. would take the personal property of Bartholomew Wilson when the personal property of Bartholomew Wilson is to be distributed ? They would be those upon whom the law would cast the personal estate of Bartholomew Wilson, or those who, undei the law of descent and distribution, would take the personal estate of Bartholomew Wilson.

In considering who it was intended were the heirs of Bartholomew Wilson, in .case he died intestate, with personal property alone involved, we would simply ask the question, who would take personal property of Bartholomew Wilson under the statutes of descent and distribution if he died intestate? There is no question but what under Section 8592 of the General Code, under the chapter of descent and distribution, the widow would take oné-half of the first $400, and one-third of the remainder in case there were children. But it may be said that she would take this personal property as dower, that as a widow, and not :as an heir, and that, therefore, the definition given by Judge Davis and Judge Donahue should be modified, and we should say, that heirs are those who take under the statutes of descent -.and-, distribution, with the exception of the widow,

“It thus appears from this cursory view of .the legislation of this state upon the subject, that the provisions made for the' widow out of the personal estate has differed from that in relation to her dower in the real estate, by always giving her the absolute property instead of a mere life usé of the same.’'’

Beginning in the last paragraph on page 10, which is concluded on page 11, we find that the court gives various reasons why the widow’s share of theh personal property is different from her dower in the real estate-; first, that she has an absolute title to all the personal property distributed to .her; that she. is given the same title to her share of the personal property which is given to the children; that her title is made to accrue upon the death of the .husband; ehat the title of the- widow accrues at the same time under the same statute and is of the same .character. And in the last sentence of said paragraph on page 11 we read as follows:

“These statutes of distribution seem rather to recognize the relation of the widow to be to the intestate, in nearness' and affection, akin to that of the child, and possessing a like claim to be regarded an heir, as to his personal estate, and to take with heirs, as co-distributee, a certain part of the personal estate.”

So that according to this decision the widow’s share of personalty is not to be considered as a dower. Section 8592 is incorporated in a chapter.under which the widow takes her share of the personal property, known and named as the chapter of descent and distribution, and is not incorporated under the chapter on dower in the General Code.

In the first sentence of said section we read that the widow or widower will be entitled to all the personal property; and'the second sentence of said section, in which the intestate leaves children, we read the-same language, “the widow or widower will be entitled to one-half of the first $400, ’ ’ etc. So that the same language giving her the whole of the personal property, when it is admitted she would be an heir, even of the real estate, is used in the second sentence when giving her only a part of said personal property. . ’

One of the main requirements in order to make a person an heir under the common law use of that term was that the person taking real estate should have an absolute title in fee simple to all of the real estate. This requirement is not only met in regard to the widow’s rights to the personalty, but it is more than met because the testator can not even deprive her of this right by will unless she so elects.

The court has given a number of Ohio decisions in this ease, but the decision most nearly in line as to whether or hot a widow is to be included as an heir when personal property aloné is 'involved, when a child is surviving, is decided in the 3 C. C. Rep., page 577, in the case of Young Men’s Mutual Life Insurance Association v. Pollard et al. In this casé the syllabus reads as follows:

"P. became a member of a mutual life association, and received a policy, which on his death entitled his ‘heirs’ to receive a certain sum from the association. He died, leaving ..a-widow and one child surviving him. Held: That his widow and child were his heirs as to said sum, and took it as tenants in common, and in the proportions fixed by the statute of descent and distribution, when the intestate has died, leaving a widow, and a child or children.”

According to the facts in this case there was nothing in the by-laws or in the policy of insurance in the way of language, such as "widow” or "orphan,” which would modify the meaning.of the word "heirs.” When the policy was issued he was unmarried, but was the father.of a daughter by a former marriage. . After he became a member of the association he married again, and not long thereafter died, leaving his widow and child surviving him. This policy was payable to his heirs, and the question under the circumstances was for the court to construe what the word "heirs” meant. It is well to take note.here that $1,000 from the insurance policy was never the property of the insured, although-he was the owner of the. policy, in view of. the observation-by defendant’s counsel, that the money to be., distributed among Bartholomew Wilson’s heirs was never. Bartholomew Wilson’s property. And in determining what the word "heirs'” meant, the court on page 578, near the middle of the page, asks the following question:

“Is Mrs. Pollard a person who would take personal estate from her husband on the. distribution of his personal estate, dying intestate?” ...

After discussing the statutes regulating descent and distribution, the court finds that the statute would give to her from her husband’s personal property one half of the first $400 and one-third of the residue. The court then says:

“The widow by virtue of these statutes takes a certain share of the' estate of her husband left for distribution. • Can it be said that she does so as an ‘ heir ’ ? There can be no doubt but that, if the provisión was made in the will, it would be held to apply as well to a widow as to a child.”

In the conclusion the court holds that the widow is entitled to $400 and the child to $600. Judge Cox dissented from this decision, because he did not believe that the widow was an heir.

If the court was right in this decision, there is no question but what Catherine Wilson was an heir of Bartholomew Wilson’s personal estate, provided he died intestate. And all the decisions of the different states which hold that the word “heirs” used in a will or an insurance policy, when personal property is to be distributed, includes those who would take under the statutes of distribution, together with the findings and the reasoning of the courts of Ohio which this court has cited, sustain the decision made by Judges Smith and Swing in the Third Circuit, as just cited.

The court, therefore, holds that in the will just submitted to the court for construction, Isaiah Wilson, when he used the term “heirs at law” of his deceased brother, Bartholomew Wilson, intended to include and meant to include Catherine Wilson as an heir at law of Bartholomew Wilson, provided she was still living when Elizabeth D. Wilson, Josiah Wilson’s widow died.  