
    William Brewster v. Jonas B. Benedict and others. Charles E. Brewster v. William Brewster and others.
    Under the statute of Ohio, to regulate descents, etc., the property of an intestate, coming to him by devise, or deed of gift, when he would, by law, have inherited the same property, must descend to those heirs who aro of the blood of the person, who made the devise, or deed of gift, whether such pérson he the lineal ancestor of the intestate or not.
    This is a bill in chancery, and a cross-bill, reserved in the county of Huron.
    The facts of the case are as follows:
    On September 14, 1838, David M. Benedict, then, and until his death, a resident of Danbury, in the State of Connecticut, executed his last will, of that date.
    At that time, September 14, 1838, his property consisted of personal and real estate, situate in Ohio and Connecticut, of very considerable value, and the state of his father’s family was as follows: Platt and Sally Benedict, his lather and mother, resided at Norwalk, Ohio. His oldest sister, Clarissa, married to Hallet Gallup, also of Norwalk, Ohio, by whom she *had a family of children, then and still living, but Mrs. Gallup was not living with her husband. Eliza Ann, his second sister, was married, and living with the complainant, also of Norwalk, Ohio, by whom she had ono child, Platt B. Brewster, born December 18, 1836, then living. Ho had also one brother, Jonas B. Brewster, of said Nor-walk, who had children. 4
    
    The will is as follows:
    “I, David M. Benedict, of Danbury, in tno county of Fairfield, and State of Connecticut, being of a sound and disposing mind and memory, do make, and ordain this, my last will and testament, in manner and form following, to wit:
    “ 1. I will, order, and direct, that all my just debts and funeral charges be fully paid and satisfied, by my executors, hereinafter named.
    “ 2. I give, and devise, one equal fourth part of all my remaining estate, both real and personal, to my brother, Jonas B. Benedict, and to his heirs and assigns forever.
    “3. I give, devise, and bequeath ono equal fourth part of all my remaining estate, both real and personal, to my said brother, Jonas B. Benedict, and to his heirs and assigns forever, upon the trust and confidence following, to wit: That he shall place all the moneys, and the avails of the other personal estate, so bequeathed in this clause of my will, at interest, on good security, or invest the same in stocks, at his discretion, and shall lease or occupy the real estate, devised in this clause of my will, and shall annually, or oftener, if, in his judgment, it shall be expedient, pay the interest, dividend, rents, profits, and annual income thereof, to my sister, Clarissa Gallup, the wife of Hallet Gallup, separate from, and independent of, all control of her said husband, during her coverture; and if the said Clarissa shall survive the said Hallet Gallup, or shall at any time bo divorced from him, then, upon such divorce, or at the death of said Hallet, the said trustee shall pay, transfer, and convey all said moneys and estate to the said Clarissa, and *to' her heirs and assigns, forever. But if the said Hallet Gallup shall survive the said Clarissa, and she shall not be divorced from him, then, at her death, the said trustee shall pay, transfer, and convey all said moneys and estate to the children of said Clarissa, and their legal representatives, if any of her children are then dead, leaving children, or a child', said child, or children, are to have what would have been their parent’s share if living. My will is, that said Hallet shall havo no beneficial interost in my estate, other than what must necessarily result from the fact, that his wife and her children, and their representatives, are the objects of my bounty, and shall receive no part of the said interest, dividends,- rents, profits, and annual income, or any of the avails of my estate; but the same, when paid, shall be paid to, and for the sole use and disposal of, said Clarissa, during her coverture. '
    “4. I give, devise, and bequeath one other equal fourth part of all my remaining estate, both real and personal, to my said brother, Jonas B. Benedict, and to his heirs and assigns forever, upon the trust and confidence following, to wit: That he shall place all the moneys, and the avails of the other personal estate, bequeathed to him, in this clause of my will, at interest, on good security, or invest the same in stocks,- at his discretion, and lease or occupy the real estate, devised to him in this clause of my will, and shall annually, or oftener, if in his judgment it shall be expedient, pay the interest, dividends, rents, profits, and income thereof, to my sister, Eliza Ann Brewster, separate from, and independent of, all control of her husband, William Brewster, during her coverture; and if the said Eliza Ann shall survive the said William Brewster, then, at his death, the said trustee shall pay, transfer, and convey all the said moneys and estate to the said Eliza Ann, and to her heirs and assigns, forever, to bo hers absolutely. But if the said Eliza Ann shall die, during the lifetime of said William Brewster, then, at her death, the said trustee shall pay, transfer, and convey the same to the child, or children, of the said Eliza Ann and their legal representatives, and to *thoir heirs and assigns, forever. And if there shall be no such child, or children, or their representatives, then I give tho one-half thereof to the said Jonas B. Benedict, or his heirs, to bo his or theirs, absolutely, and forever free and discharged from all trusts. And if the said Clarissa be then living, and still be the wife of the said Haliet Gallup, I give the other half to said Jonas B., upon the trust declared and expressed in the third clause, or paragraph, of this, my will, for the benefit of said Clarissa and her children, and their representatives ; but if the said Haliet be then deceased, or the said Clarissa divorced from him, then to the said Clarissa, and to her heirs and assigns, forever, if she bo living; if she bo then dead, then to her children and their legal representatives.
    “5'. I give, devise, and bequeath one other equal fourth part of all my remaining estate, both real and personal, to my said brother, Jonas B. Benedict, and to his heirs and assigns forever, upon the trust and confidence following: That he shall place all the moneys, and "tbo avails of all the other personal property given in this clause of my will, at interest^ on good security, or invest the same in stocks, at his discretion, and shall lease or occupy the real estate, devised in this clause of my will, and pay tha interest dividends, rents, profits, and income thereof, and apply the same to and for the comfortable support of my father, Platt Benedict, and my mother, Sally Benedict, during their joint lives and to and for the comfortable support of either survivor of them during the term of life of such survivor, and the same shall be applied and paid, as they, my said father and mother, may need, or as the survivor of them may need, from time to time, for their support, in ease and comfort, allowing them, and the survivor of them, to live where they, or the survivor, shall think fit; and if said interest, dividends, rents, profits, and income shall be insufficient for the comfortable support of my said father and mother, and of the survivor, as aforesaid, then the trustee shall pay, and apply, to and for their said support, so much of the principal of the moneys in his hands, from time to time, as shall be necessary *for their said support. But it is my desire that all such interests, dividends, rents, profits, and income of said trust estate, shall be paid for their support, as aforesaid, from year to year, and the principal, or so much thereof as shall bo necessary, from time to time, as before expressed; and said estate shall remain in trust, as aforesaid, until the death of said Platt and Sally; and upon the death of the survivor of them, the said Platt and Sally, I give, devise, and bequeath the said last-mentioned fourth part of my estate, or so much thereof as shall then remain unexpended, as follows, to wit: One-third part thereof to the said Jonas B. Benedict, and to his heirs aDd assigns iorover, to and for his or their own nso; one other third part thereof to the said Jonas B., upon the same trusts as are declared and expressed in the third clause, or paragraph, of this ray will, for the benefit of the said Clarissa Gallup and her children, and their representatives, if the said Clarissa bo then living, and still the wife of said Hallot Gallup. But if the said Hallet be then deceased, or the said Clarissa divorced from him, then to the said Clarissa, and her heirs and assigns forever, if she be living; but if she be then dead, to her children, and their legal representatives, and their heirs and assigns forever; and the remaining third thereof X give and devise as follows, to wit: If the said Eliza Ann then be living, and shall then have ceased to be the wife of said William Brewster, Igive the same to the said Eliza. Ann, and to her heirs and assigns forever; if she shall then have died, leaving a child, or children, who shall then be living, I give and devise the same to such child, or children, and their legal representatives, and to their heirs and assigns forever. But if she shall be then dead, and there shall be no child or children of the said Eliza Ann, nor legal representative living of such child or children, then I give and devise one-half of the same to the said Jonas B., and to his heirs and assigns forever; if he shall then be dead, then to his children, and their legal representatives, and to their heirs and assigns forever; and the other half thereof to said Jonas B., in trust, for said Clarissa and her children, if she be *then living, and still the wife of said Hallot, upon the same trusts as are declared and expressed in said third clause of this my will; if she shall have been divorced from said Hallot, or he be dead, then I give the same to said Clarissa, and to her heirs and assigns forever, if she be then living ; if the said Clarissa be then dead, I give and devise the same to her children and their legal representatives; and in and by all devises and bequests, to the children of my sisters, said Jonas B., and their legal representatives, it is my meaning and intent, that the issue of such children, who shall bo dead, when said devises are to take effect, shall take the same portion or share as their parent or parents would havo taken if living; and I do hereby authorize and empower said Jonas B. Benedict to sell and convey any or all the real estate herein given and devised to him in trust, at such times, in such portions or quantities, and for such prices as he shall think fit. And the money arising or accruing upoD such sales, shall be in his hands upon the several trusts herein declared and expressed.
    “As to that part of my estate, mentioned in the fifth clause of my will which, upon the death of my father and mother, is given to my sister, Eliza Ann, if she shall then bo living, and shall have ceased to be the wife of said William Brewster, I further devise, as follows, to wit, that if the said Eliza Ann shall be living, on. the death of the survivor of said Piatt and Sally, and still the wife of said William Brewster, then I give and devise the same to said Jonas B. Benedict, upon the trusts declared and expressed in the fourth clause, or paragraph, of this, my will, for the benefit of said Eliza Ann and her children, and their legal representatives.
    “And to remove all doubts which may arise as to the construction to be given to the words, ‘ my remaining estate both real and personal,’ in the third, fourth, and fifth clauses, or paragraphs, of the foregoing will, I do hereby declare that I mean, and intend thereby, the estate which shall remain, after the payment of debts and charges, as directed in the first clause, or paragraph, of my said will, and that one-fourth part *of my estate remaining, after the payment of said debts and charges, is devised in and by each of said third, fourth, and fifth clauses, or paragraphs.
    “Lastly. I do hereby constitute, and appoint, Eli T. Hoyt, of Danbury, Fairfield county, and State of Connecticut, and my brother, Jonas B. Benedict, of Norwalk, Huron county, State of Ohio, to be executors of this, my last will and testament; hereby declaring this, and this only, to be my last will and testament; and I do hereby revoke and annul any and all former wills, and wills by me at any time heretofore made.
    “In witness whereof, I have hereunto set my hand and seal, Septémber 14, a. d. 1838.
    “D. M. Benedict, [l. s.]"
    After the making of the will, to wit, June 17, 1839, Wm. Brewster and Eliza Ann had a second son, named William D.
    Before the death of the testator, Eliza Ann Brewster died, leaving her two sons living, both of whom survived the testator.
    After her death, her husband, the complainant, married a second wife. This marriage took effect in October, 1842, and of this marriage the complainant, William E. Brewster, is the issue.
    David M. Brewster, the testator, died in January, 1843, at Dan-' bury, in Connecticut. The two children of Eliza. Ann were then living, but they both died before the fall of 1844, leaving their father, the complainant in the original bill, and their stop-mother, tho complainant in the cross-bill, both of whom are still living.
    The executors, named in tho will, refusing to accept tho trust, tho defendants, Twecsey and Wildman, were appointed administrators, with the will annexed, by the court of probate, in Connecticut, where the will was proved, on February 18,1843, and has been admitted to record in Ohio.
    *Boalt and Worcester, for complainants :
    We propose the following questions:
    1. What is tho nature of this property, as being either real or personal, under the devises of this will?
    2. If the land is to be regarded as real estate, will it pass in course of descents, as an estate derived to the children, by devise, descent, or deed of gift, from an ancestor?
    
    3. By what law, that of Ohio or Connecticut, is this will to be construed; and what is the statute law by which it is to be affected?
    I. Is the property to be affected by the will, personalty, or real estate ?
    No rule is better established than this, that real estate may be impressed with the character of personalty by will; and that it will, in that case, be subject to the laws of distribution, which govern that kind of property. Ward on Leg. 332; 18 Law Lib. 171; Leigh & Delzel on Eq. Conversion, republished in Law Lib. 128-147 ; Maberly v. Strode, 3 Ves. 450.
    If, then, it was the intention of the devisor that the land should be converted into personalty, it is to be regarded as personalty.
    II. If the land in Ohio is to be regarded as real estate, will it pass, in course of descent, as an estate derived to the children, by “ devise, descent, or deed of gift from an ancestor?”
    By the statute of Ohio (Swan’s Slat. 286, 287), lands derived from an ancestor by devise, will go to the brothers and sisters of such ancestor, in default of: 1. Children of the intestate and their representatives. 2. Brothers and sisters of the intestate, of tho blood of tho ancestor, and their representatives. 3. Children of the ancestor from whom the estate came, and their representatives.
    If an estate be limited to the heirs of A., he takes nothing, *and they take by purchase, as they never can take by descent from A., where nothing vests in him. He takes by purchase, or not at all. 2 Black. Com. 242; Allen v. Palmer, 1 D. & E. 634 ; 4 Dane’s Ab., ch. 125, art. 5, sec. 16.
    And though a person would have inherited as heir, yet, if the property is devised to him, it has been held that he takes by purchase, and not by descent. Swaine v. Burton, 15 Ves. 365; Ray v. Garret, 2 Wash. 9; Cruise’s Dig., title Devise, ch. 14, sec. 65.
    III. Is this will to be construed by the laws of Ohio or, Connecticut?
    In respect to personal property, the succession is governed by the law of the domicile of the intestate at the time of his death, though the property be actually situated out of the state. Story’s Conflict of Laws, 403, sec. 481.
    In respect to real estate, the descent and heirship is governed by the law of the country in which it is actually situate. Ib. 404, sec. 483.
    In respect to testamentary disposition of property, the law of the actual domicile of the party at the time of making the will, governs. 1. As to capacityorincapacity. 2. In respect to the forms and solemnities of execution. And 3. In respect to the rules by which they are to be interpreted. Story’s Conflict of Laws, secs. 52-62, 64, 78, 101-106, 368, 430, 434, 465-469, 479-480, 484; 4 Birge Com. on Col. and For. Law, 590, 591, pt. 2, c. 12.
    This bring us to a consideration of the laws of descent in Connecticut.
    Perpetuities are alike prohibited by the laws of Connecticut and Ohio. Stat. Conn. 384; Swan’s Stat. 319.
    The entailment of estates is also prohibited, beyond the issue of the first decree in tail, in whom the statute enlarges the estate into a fee simple. Ib.
    The rule in Shelley’s case is abolished both in Ohio and Connecticut. Stat. Conn. 348; Swan’s Stat. 999.
    Neither in lands nor goods can an estate be limited on an indefinite failure of heirs. Ward on Leg. 236, 238.
    *Trust estates are subject to the same rules. 1 Hilliard's Abr. 222, 223.
    The testator is rather to be presumed to calculate on the dispositions of his will taking effect than the contrary ; and a provision for the death of devisees will not be considered as intended to provide for lessee, if any other construction can be put upon it. 2 Atk. 374; 4 Ves. 418, 554; 7 Ves. 586; 1 Ves. & Bea. 422; 1 Pri. 264.
    It is an established rule, that where the bequest is to A., “ and in case of his death," or, 11 if he die," to B., A., surviving the testator, takes absolutely. Jarm. Pow. Dev. 758 ; Trotter v. Williams, Prec. Ch. 78. See also Doe, on demise of Smith v. Webber, 1 Barn. & Ald. 713; 3 Barn. & Aid. 546; Cruise’s Dig., title. Dev. ch. 20, see. 17, 24; Pow. on Dev. 565.
    One fee can not be limited upon another, nor can there be a limitation of a remainder after a fee. 1 Hill. Abr. 163, 371; 12 Pick. 64; Conn. Stat. 204, 205; Cruise’s Dig. title Dev. ch. 12, sec. 20; 2 Bro. Parl. Cas. 154; 12 Ohio, 390; 1 P. Wms. 747, 663; Cowp. 410; 9 Ves. 197.
    An estate for life may be enlarged into an estate tail, when it may bo implied from a limitation over by tho will, if there are no words in the will under which the issue can take, as purchaser. 1 Hen. & Munf. 303 ; 1 Ld. Raym. 202 ; Fearne’s Con. Rem. 556; 5 Day, 517; 2 Bl. 777 ; Doug. 265 ; 3 Serg. & Rawle, 435.
    If an executory devise bo limited, upon the death of'a party without heirs, or issue, or on failure of issue, or without having issue, it can not take effect till after an indefinite failure of issue, and is therefore void as being too remote. Ward on Leg. 236; Fearne’s Con. Rem. 460; Pow. on Dev. 531; 3 Term, 484.
    What is meant by “legal representative?” They may have reference to the artificial representation, granted by the' ecclesiastical court, or it may be intended to point out those who would take under the statute of distributions. The court will judgo from the- context, and carry the intention into execution. *3 Ves. 148; 2 Williams’ Ex’rs, 820-823; 3 Ves. 490; 3 Brown, 226; 1 Anst. 132; 1 Jac. & Walk. 387 ; 5 Ves. 402.
    In this case, the testator has himself given a construction to the phrase, “the child or children of said Eliza Ann, and their legal representatives, and their heirs and assigns forever,” by language that makes it certain that the terms, “ their legal representatives,” mean tho representatives, per stirpes, of the children who should be deceased at the taking effect of the devises of the will, and hence, the property is left, under the ordinary rule of descent, and goes to Charles Edwin Brewster.
    Root & Lane, for defendants:
    The fourth clause of M. D. Benedict’s will is as follows: “I give and bequeath one other equal fourth part of my remaining estate, both real''and personal, to my brother, Jonas B. Benedict, and his heirs and assigns forever, upon the trust and confidence, that he place all the moneys and avails of the personal estate bequeathed to him in this clause of my last will, upon good security, or invest the same in stocks, at his discretion, and shall annually pay to my sister, Eliza Ann Brewster, separate and apart from, and independent of, all control from her husband, William Brew- . ster, during coverture. And if said Eliza Ann shall die within the lifetime of the said William, then, at her death, the said trustee shall pay, transfer, and convoy the same to the child or children of the said Eliza Ann, and their legal representatives, and their heirs and assigns forever. But if thero be no child, or children, or their representatives, then” over to his brother and sister.
    Mrs. Brewster died before her brother, leaving two small children, upon whom the testator’s bequest took effect, at his death. Within less than a year, both children died. Meanwhile William Brewster had married again, and at the death *of the last of Mrs. E. A. Brewster’s children, had another child by the second marriage. The question arising is, who is heir to Mrs. E. A. Brewster’s child ? Does the property bequeathed by D. M. Benedict to his sister’s children, pass, by our statutes of descent, to his own brothers and sisters, or to the half-blood brothers of the children? In a more general term, is property, acquired by devise from an uncle, ancestral or non-ancestral?
    No sentiment is more deeply imbedded in the heart of man than that which ascribes an inheritable character to property. The human race has rejected that abstraction of the schools, which Blackstonc and the social compact theorists and certain philosophers profess to believe, that the right of succession to property has no other basis than positive law. For, notwithstanding occasional exceptions, where feudalism or despotism has grasped the children’s bread, no nation has been found so barbarous as not to admit and assert that the property of a decedent belongs, of right, to the kin-folk of his blood, and not to the stranger of his house.
    This principle of succession has over obtained with the Teutonic race; and all its branches, Norman and Saxon, have united in leaving new acquisitions to distribution among general heirs, but in limiting what was acquired by inheritance to the line from which it came. Our statutes of descent conform to, and carry out, this abiding and almost instinctive sentiment, and provide that property, which came not by descent, devise, or gift, shall pass to the heirs general; and that property, acquired by descent, devise, or gift, from an ancestor, shall be transmitted to the heirs of his blood. The distinct object of these provisions is to render property, acquired by descent, or gift, or devise, in consideration of blood, and for no, pecuniary equivalent, ancestral.
    This obvious result admits no escape, except by maintaining: 1. That the uncle and devisor of the decedent, is not his ancestor, within the meaning of the law. 2. Inferring the descent of ■the decedent’s estate is consequently controlled by the alternative statute.
    *Now, any construction which bestows D. M. Benedict’s property, so carefully limited by his will to his brother and sisters, upon utter strangers to his blood and name, we know to be contrary to his intention, conflicting with our sense of right, and opposed to the spirit of our system of descents ; and we call, with no light faith, upon the court to struggle against such a result.
    The legislature doubtless intended that all eases of descent should fall within the two statutes, so that this inheritance is governed by one or by the other. If the plaintiff insist on limiting the word ancestor, in the first, to its narrowest meaning of lineal ancestor, and thus exclude this property from its operation, because it came to the decedent from no lineal ancestor, we reply, with stronger cogency, that the second does not govern it, because it did come by devise.
    But the business of the court is to make both statutes harmonious. We assume that property, descending from, or devised by, an uncle, is ancestral estate. ■ The same rules attach to devises as to descents; and the court will observe that, in this case, the nephews of D. M. Benedict are his heirs as well as devisees.
    We lay down the proposition, that all property which a decedent has acquired by descent is ancestral. This doctrine depends upon the legal fiction of representation, by which all descendants of a lineal ancestor are referred to him, and all inheritances traced through him, are, by this figment, supposed to come from him.
    2 Black. 226, explains this: “Now, here it must be observed, that the lineal ancestors, though according to the first rule, inca-pable themselves of succeeding to the estate, because it is supposed to have passed through them, are yet the common stock from whom the next successor must 'spring. And, therefore, in the Jewish law, which, in this respect, entirely corresponds with ours, the father or lineal ancestor is said to be the heir, though long since dead, as being represented by the persons of his issue, who are held to succeed, not in *their own right, as brethren, uncles, etc., but in right of-representation, as the offspring of the father, grandfather,” etc. I do not pursue tlje quotation, but further and fuller explanations may be found on that page and, throughout the chapter. But for this cause, lands are said to descend from collateral kindred, as from one brother to another, or even from a son to an uncle, because the land comes to them through and per consequence, by and from the common ancestor, and thus is holden to descend from such ancestor, and therefore is ancestral land. “ Collateral descent is that which takes place to persons who spring out of the side of the whole blood, as another branch thereof, such as grandfather’s brother, father’s brother, and so downward.” Ins. 10, 11. “Therefore, if a man purchases land in fee simple, and dies without issue, for default of the right line, he who is next of kin of the collateral line, comes in by.descent, as heir from him. Lit. sec. 2; 1 Tern, 415; 3 Rep. 40.” Note to Chitty’s Blackstone, N. T. Rd., 1827.
    Our statute attaches the same ancestral quality to lands devised. Lands devised by a parent to his child are by this rule ancestral. So the uncle, limiting property in the line of succession, first, to his-sister, who is his heir apparent; next, to her children, who stand in the next rank; and’ lastly, over to other children, still following the ordinary course of descent, does not divest his land of its ancestral character, but transmits it to the taker, with its inheritable qualities attached to it. If the land had been given by the uncle to the nephew, and the nephew had died before the uncle, without children, the statute would have restored it. to the uncle, as ancestral, by inheritance, and it would not have gone out of his family to a half-blood brother or entire stranger.
    These cases show that the legislature did not mean to employ this word ancestor in its narrowest literal meaning, but used it as synonymous with kindred. They likewise show the spirit of the system can be preserved in no other mode than by regarding all property ancestral which is acquired through consideration of blood or relationship, whether in the shape of gift, devise, or descent.
   *Hitchcock, J.

The object of the parties in this case seems to be to obtain a judicial construction of the fourth clause of the will of David E. Benedict, which has become necessary in consequence of the death of Eliza Ann Brewster, and her two children, Platt B. and William D. The complainant, in the original bill, claims that he is entitled to the estate devised to the two latter, as their father; and the complainant, in the cross:biIl, claims that he is entitled to the same estate, as their half brother. The defendant, Jonas B. Benedict, claims the same estate, both under the will and by virtue of the statute of Ohio regulating descents and the distribution of personal estate.

A preliminary question is made, whether under this will the estate devised is to be considered as real or personal. We admit the doctrine that where, by the direction of a will, real estate is to be disposed of and converted into money, a court of equity will consider it as money. But there is nothing in this will to show that such was the intention of the testator. On the contrary, the testator devises his estate, “both real and personal,” to, or in trust for, his devisees. He does not, in positive terms, direct it to be sold, but if it should be sold, he directs in what manner the avails shall be invested.

Another question is raised as to whether the law of Connecticut or of Ohio is to govern in the decision of the particular question submitted to the court. To a very considerable extent, the construction of the will must depend upon the law of Connecticut. But when it is considered that the devisees and legatees are all in Ohio ; that the trustee is in Ohio ; that the property itself, so. far as it can be done, is to be, and actually has been, transmitted to Ohio; when a question arises as to the distribution of that property thus transmitted, and where it is not controlled by the will that question must be'settled according to the laws of Ohio.

The intention of the testator is apparent upon this will. That intention was, to distribute his estate, in equal parts to *his sisters and brother, reserving the use of one-fourth part to his father and mother during their joint lives, and the life of the survivor. And it is equally apparent that it was his intention, in the event of the death of either of his sisters, and their children, without issue, that the portion of the estate allotted to such deceased sister should be equally divided between the remaining brother and sister; or in case of their death, then between their children, taking per stirpes. It did not enter into his mind that, by his will, any part of his estate was to go to strangers. Now is this intention to be defeated by any rule cf construction heretofore adopted ? And here I must be permitted to say that these rules, in most cases, are applied, not for the purpose of ascertaining, but of defeating the intention of a devisor or testator. In this state, however, we are required by statute to carry out this intention ; and I presume no such statute would have been passed had it not been supposed that these antiquated rules of construction were too much regarded by our courts.

The clause in controversy in the will of David M. Benedict is the fourth. By this clause, one-fourth of the estate is devised to Joseph B. Benedict, in trust for Eliza Ann- Brewster, and it provides that, if the said Eliza Ann shall survive her husband, then, at his death, the trustee is to convey the pi’operty to her, and to her heirs and assigns, to bo hers absolutely. But if she shall die before her husband, then the said trustee is required to transfer and convey the same property “ to the child or children of the said Eliza Ann, and their legal representatives, and their heirs and assigns forever ;” and if there were no such children, qr representatives, then the said fourth part of the estate was to be equally divided between Jonas B. Benedict and Clarissa Gallup, if then living.

Eliza Ann died before the testator, leaving her two children, Platt B. and William D., who were both living at the death of the testator, but who died within eighteen months thereafter. Now, had these children, as well as their mother, died before the testator, I suppose there is no controversy but that Jonas *B. Benedict and Clarissa Gallup would have taken the estate. But it is contended that, inasmuch as the children were living at the time, they took the estate in fee simple, and that, having died without issue, it must go either to the father, according to the law of Connecticut, or to the half-brother, according to the law of descents and distribution of Ohio. This, surely, is not according to the intention of the testator. He did not intend that his estate should, under his will, bo transmitted to those who were not of his own blood.

But suppose the children of Eliza Ann Brewster did take an estate in fee simple, and the will of the testator can have no further effect to control property, but that the same must be distributed according to the statute regulating descents, how stands the case ?

This statute (Swan’s Stat. 286) provides, “that when any person shall shall die intestate, having title or right to any real estate of inheritance in this state, which title shall have come to such intestate by descent, devise, or deed of gift from any ancestor, such estate shall descend and pass in parcenary to his or her kindr'ed, as follows : First, to the children of such intestate, or their legal representatives; if there- be no children, or their representatives, then to tho brothers and sisters of the intestate, who may be of the blood of the ancestor from whom tho estate came, or their legal representatives, whether such brother and sisters be of the whole or of the half-blood of the intestate.” If the estate came not by descent, devise, or deed of gift, the provision is, that it shall descend, first, to the children, and their legal representatives ; in failure of these, then to the brothers .and sisters of the full blood, and their representatives ; in failure of these, then to the brothers and sisters of the half-blood.

Now, is it the intention of this statute that, if the estate came to the intestate by descent from a brother or uncle, it shall descend, in the event of the failure of children, and of brothers or sisters of the full blood, to those brothers and sisters of the half-blood, but who are not of the blood of the *person from whom the intestate inherited ? Does it intend that an estate thus acquired, by descent, shall be governed by the same rules as if an original estate, acquired by the intestate by deed or devise from a ,person not in the line of inheritance? Must the estate have descended lineally, or have been devised by one in the direct -descending line, in order that it may not descend to those who are not of the blood of him from whom it came ? We do not so understand the law, or such to have been the intention of the legislature. True, the word ancestor is made use of; and by ancestor we understand, in common parlance, one from whom a person lineally descended. But this word must be taken in connection with tho whole subject matter of the act or instrument in which it is used.

In this act, relative to descents and the distribution of personal estates, the legislature seem to have divided the property of which a man might die seized into two classes or two divisions, to wit, such as camo to him in the regular course of descent, including such as may have been devised to him, or which may have been conveyed to him by deed of gift, but which he would have inherited had there been no such devise or deed of gift, and such as he may have acquired by his own industry, or by the devise or deed of gift from a person to whom he could' not have inherited in the regular line, either lineal or collateral. In the first class of cases, the blood of the person from whom the estate came is to be regarded in the distribution ; in the last, the blood of the intestate. That such was the intention, it seems to us there can be no doubt.

, Then apply the statute, thus understood, to the case before the court. The children of Eliza Ann Brewster would have inherited this property had it not been devised to them by their uncle, David M. Benedict; and in that case, upon their death without issue, the brother and sisters of the testator would have been their heirs, to whom the property must have descended, excluding a brother or sister of the half-blood of said children, but not of the blood of the testator; so that whether this estate is to be governed by the manifest intention-*of the testator, as expressed in his will, or by the statute of descent, the result is the same. In either event, neither the complainant in the original bill nor the complainant in the cross-bill have any right to this property, and both bills must be dismissed.

Wood, C. J., being unwell, did not sit in this ease.  