
    Hengstenberg v. Unknown Heirs and Devisees of Hengstenberg et al.
    (Decided March 27, 1933.)
    
      Mr. Grover C. Brown, for plaintiff in error.
    
      Mr. Clarence A. Bchnieders, for defendants in error.
   Hamilton, P. J.

Hengstenberg, plaintiff in error here, brought an action in the court below to register the title to certain real estate described in his petition. In the' course of the proceeding the trial court referred the matter to a title examiner for examination and report. The title examiner returned an adverse report to registration. Hengstenberg thereupon elected to proceed to final hearing before the court. The court heard evidence in the casé and found that Hengstenberg did not have fee title to the property, and dismissed his petition. From that judgment, error is prosecuted to this court.

It appears that the real estate in question prior to 1915 was owned by Bernard Geers, who died some time prior to 1915 leaving a will in which he devised the real estate to his son Henry Geers. The son, Henry Geers, went to Los Angeles, and in February, 1915, devised the property in question to one Della May Angle, whom he named executrix of his will. Henry Geers died in March, 1915. His will was probated and Della May Angle was named executrix. She proceeded to settle the estate in the courts of Los Angeles county, California, where Henry Geers lived at the time of his death. Under order of the court the real estate in question on the settlement of this estate was transferred to Della May Angle. Later, Della May Angle married plaintiff in this case, plaintiff in error here, William F. Hengstenberg, in Los Angeles. Della May Angle Hengstenberg died October 15, 1916, intestate, and left surviving her the widower, plaintiff in error here. At the trial of the case the question was raised as to whether or not Della May Angle had been married to the deceased Henry Geers, and survived him as his widow, and this marriage seems to have entered into the determination of the case by the trial court. Henry Geers left no children surviving him. There were no children born of the marriage of Della May Angle and plaintiff in error Hengstenberg. The only question is as to the right of the plaintiff in error to have the title registered, and this is determined by the title he acquired as the surviving husband of Della May Angle Hengstenberg.

It is not disputed, and is the law, that if Della May Hengstenberg was not married to Henry Geers at the time of his death she would take the property as a devise to a stranger, under the provisions of Section 8574 of the General Code of Ohio as it existed at the time of his death in 1915. Does the fact that Della May Angle may have been the surviving widow of Henry Geers alter the situation or change the character of the property and the devolution thereof under the law of descent and distribution?

There is evidence tending to show that Della May Angle was married and was the surviving widow of Henry Geers. There is strong evidence to the contrary. The trial court may have been justified in finding that Della May Angle was the surviving widow of Henry Geers and took the property by devise of Henry Geers to the surviving wife.- We do not feel justified in reversing the case on this question alone. If the decision turned on the question whether or not Della May Angle was the surviving wife of Henry Geers, and took by devise from him the property which came to him by devise from his ancestor, we would not disturb the judgment. We, therefore, consider the law on the theory that she was the surviving wife and took the property by devise from her deceased husband, who had acquired the property by devise from an ancestor.

It would appear that the trial court rendered the judgment that it did on the theory that the property was ancestral property in Della May Angle Hengstenberg, and that upon her death the title passed under Section 8573, General Code of Ohio, under which Hengstenberg would take only a life estate and the fee would go to the blood of the ancestor from whom the estate came, that is, the next of kin of Henry Geers, who devised the premises to Della May Angle. The question then is: Did the property become, non-ancestral from the fact that it was devised to Della May Angle, the wife, by Henry Geers, who was not of the blood of the ancestor of Henry Geers, from whom the estate came?

It has been decided and is settled law in Ohio that the husband is not the ancestor of the wife. This in effect was so decided in the cases of Brower v. Hunt, 18 Ohio St., 311; Birney v. Wilson, 11 Ohio St., 426; Gazlay v. Gosling, 24 C. C. (N. S.), 449, 34 C. D., 689. The syllabus in the Gosling case is:

“1. Within the meaning of the statutes of descent, Sections 8573 to 8577, G. 0., inclusive, a deceased husband can not be the ancestor of his relict.

“2. Property which came to a deceased husband of a relict as ancestral property by discent [descent], devise or deed of gift, and is devised by him to his widow, ceases to be ancestral property in her hands, and if she should die intestate such property would not pass under the provisions of Section 8573, G. 0., to the blood of the original ancestor from whom the estate came.

“3. When such relict of a deceased husband dies testate seized of property which was ancestral in her deceased husband, but came to her by devise from said husband, those who are of the blood of the husband and of the ancestor from whom the estate came and the next of kin of the deceased husband have no such interest in the property, as entitles them to maintain an action to contest her said will.”

In Walker on American Law (11th Ed.), p. 409, “ancestral” and “nonancestral” property are defined as follows: “By ancestral property, then, is meant that realty which came to the intestate from his ancestor in consideration of blood, and without a pecuniary equivalent, and which must have come either by descent or devise from a now dead ancestor or by deed of actual gift from a living one. And by non-ancestral property is meant all personalty and that realty which came to the intestate in any other way, whether by purchase from his ancestor or from a stranger, or an equivalent paid, or by actual gift from a stranger, so that tbe consideration of blood is out of tbe question; for this makes tbe sole distinction.”

In tbe ease of Brower v. Hunt, supra, in tbe fourth paragraph of tbe syllabus it is stated: “Tbe title to real estate which must have come to an intestate by devise, or deed of gift from an ancestor, to constitute ancestral property, is tbe title under which tbe intestate immediately held. ’ ’

Applying these rules to tbe facts of tbe case under consideration, tbe intestate Della May Angle, since her deceased husband, if such, could not be her ancestor, did not bold title immediately from an ancestor. This being true, and she dying intestate, tbe property would not pass under Section 8573, General Code, as a devise to her from an ancestor. In the case of Brower v. Hunt, supra, in construing tbe statute of descent and distribution, tbe court held that tbe first section, now Section 8573, General Code, provides for tbe course of descent of ancestral property, and tbe second section, now Section 8574, General Code, was intended to provide for all cases not included in tbe first. While Section 8574 uses tbe language, “If tbe estate came not by descent, devise, or deed of gift,” not using tbe term “ancestor,” the court in tbe Brower case held tbe meaning was that if tbe estate came not by descent, devise, or deed of gift, as provided in tbe first section. In other words, there are two classes provided for: Section 8573, General Code, provides for tbe course of descent of ancestral property, and Section 8574 provides for all cases not included in the former.

Finding as we do that tbe property in Della May Angle, whether surviving wife or stranger to tbe testator, Henry Geers, was not ancestral, it follows that tbe title must pass from her as nonancestral property, and she dying, leaving no children or their legal representatives, tbe property in question would pass under paragraph 2 of Section 8574, General Code, which reads: “If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.”

In this case, plaintiff in error Hengstenberg was the husband, relict of the intestate Della May Angle Hengstenberg.

This conclusion requires a reversal of the judgment, and since the question is solely one of law, and finding as we do that the plaintiff Hengstenberg took the title in fee, and this being the sole question, plaintiff in error is entitled to have the real estate registered. The case wall be remanded to the trial court, with instructions to reinstate the petition and register the title in accordance with the application and prayer thereof.

Judgment reversed and cause remanded.

Cushing and Ross, JJ., concur.  