
    Blum et al. v. Blum et al.
    
      Descent of realty — Curtesy of husband — Not permitted as against children of wife “by a former marriage” — Act of March 1,1869.
    
    B”' the terms of the proviso of section 17 of the act regulating descents, as amended March 1, 1869 (66 0. L., 21), a surviving ' husband is not entitled to an estate by the curtesy in lands of his deceased wife as against her children ‘ ‘by a former marriage, ” although her former marriage was to the same man.
    (Decided March 14, 1899.)
    Error to the Circuit Court of Stark county.
    Plaintiffs in error filed their petition in the court of common pleas against the defendants in error for the partition of real estate in the city of Canton described in the petition, alleging that they and the defendant Louis E. Blum were the children and heirs-at-law of Elizabeth Blum who had died intestate and seized in fee of said premises, that upon her death the said children each became seized in fee of one-third thereof, and that the defendants were in possession of the premises to the exclusion of the plaintiffs. They prayed for the assignment of dower to the defendant, John N. Blum, as the surviving husband of Elizabeth, and for an account of rents and profits and a partition of the premises. The answer of John N. Blum, without alleging facts substantially different from those alleged in the petition, prayed that the petition be dismissed upon the ground that by the statute in force at the time of the death of Elizabeth, June 18, 1870, he as her surviving husband became entitled as tenant by curtesy to an estate for life in the premises. It is not necessary to say more of the additional pleadings than that they raised issues to which the facts found by the court were- relevant. The cause was tried on appeal to. the circuit court where the following facts were found:
    This day this cause came on to be heard upon the pleadings and the evidence, and the court being fully advised in the premises, find that Elizabeth Blum died June 18, 1870, intestate, seized in fee simple of the premises described in the petition herein, leaving the plaintiff, Alice A. Sponhour, and the defendant, Louis E. Blum, children by her first marriage to the defendant, John N. Blum and the plaintiff, Norman C. Blum, child by her last marriage to the same John N. Blum, her surviving husband, she having married the said John N. Blum twice.
    And the court further find that said Elizabeth Blum and John N. Blum were first married in 1857; and that May the 30th, 1864, and after the birth of Louis E. Blum and Alice Sponhour, they w;ere divorced for the aggressions of the husband, and that the custody of said children, Alice A. Sponhour and Louis E. Blum, was awarded to her; and that on the twenty-third day of September, 1866, said Elizabeth Blum and John N. Blum were again united in marriage, and lived together until said eighteenth day of June, 1870, during which time the plaintiff, Norman C. Blum, was born, when said Elizabeth Blum died.
    And the court further finds that said real estate did not come to said Elizabeth Blum by deed of gift or devise from the surviving husband, or from any ancestor of his. And the court further find that said Alice A. Sponhour and said Louis E. Blum were not children by a “former marriage” as contemplated by the statutes of Ohio, at that time in force; that said marriage of John N. Blum and Elizabeth in 1857 was not a “former marriage” to that of the same parties, when they remarried on the twenty-third day of September, 1866; that a “former marriage” within the meaning of that statute means a marriage to a different person than the first husband and who is not the father of the first set of children of the intestate.
    And the court further find that said John N. Blum, as surviving husband, is entitled to an estate by the curtesy in said real estate and that so long as he lives no partition thereof can be had.
    It is therefore ordered and adjudged that the petition in this case be dismissed at the costs of plaintiffs. To all of which said plaintiffs except.
    Plaintiffs in error seek a reversal of the judgment of the circuit court, insisting that said judgment was not warranted by the facts found.
    
      Nat. O. (& J. 8. McLean, for plaintiffs in error.
    This case depends entirely upon the construction of the statute as to curtesy as it was on June 18, 1870, when said Elizabeth Blum died. 66 Ohio Laws, 21.
    This section has many times been construed by the courts, and always to the exclusion of the surviving husband from curtesy- in the deceased wife’s real estate under such circumstances. Tilden v. Barker, 40 Ohio St., 411; Clark v. Harlan, 17 B., 320; Bruner v. Briggs, 39 Ohio St., 478; Denny v. McCabe, 35 Ohio St., 580.
    The “former marriage” and “the issue by such former marriage” cannot be disputed in this case. It is true the second marriage of Elizabeth Blum was to her former husband, from whom she had been divorced. But, that was an absolute divorce, and the parties were by it, as completely separated and free from marital obligations as though John N. Blum had never married her.
    She was awarded the sole custody and control of the children, and John N. Blum was no longer, to her or to her children, more than a stranger. Her second marriage to him, made their first a “former marriage” in every sense, and. these children “issue by a former marriage.”
    The property involved herein was purchased by Elizabeth Blum, April 13, 1866, of Phillip Stuerhof, for $180.00, while she was divorced from John N. Blum. Neither John N. Blum, nor any one else, contributed anything towards the property or for its purchase.
    Elizabeth Blum, as soon as divorced, began tailoring and made money and paid for it, and obtained the deed for it, from her father, all before her second marriage to John N. Blum. Bruner v. Briggs, 39 Ohio St., 482.
    Where the husband pays alimony, he is not chargeable with necessaries for the children whose custody and care were awarded to the mother. Hare v. Gibson, 32 Ohio St., 38.
    All reason for curtesy was removed»
    
      “Curtesy,” statutory estate — in derogation of the common law and statutes must be strictly construed. 39 Ohio St., 516; 40 Ohio St., 411, Denny v. McCabe, 35 Ohio St., 576; 111 U. S., 722; 18 Ohio St., 462.
    It would be inequitable to allow; the surviving husband, John N. Blum, with another wife (Sarah J. Reeves), and another set of children, to occupy said premises to the exclusion of these plaintiffs these many years, and they to enjoy the rents and profits to the exclusion of the children of Elizabeth Blum. It would be an outrage upon justice, and such is not the law. Section 5774, Revised Statutes of Ohio; West v. Weyer, 46 Ohio St., 66; Cahoon v. Kineon, 42 Ohio St., 190.
    
      Charles C. Upham, for defendants in error.
    Now we don’t claim that this estate came to Elizabeth Blum by deed of gift from the said John N. Blum, her surviving husband, nor by devise or gift from his ancestors, so the question is, what is meant by this language, ‘ ‘leaving issue by a former marriage,” and our contention is the words former marriage means a marriage to some man other than the surviving husband. This question has never • been squarely passed on by the Supreme Court of this state, and the following cases Tilden v. Barker, 10 Ohio St., 411; Clark v. Harlen, 17 B., 320; Bruner v. Briggs, 39 Ohio St., 478; Denny v. McCabe, 35 Ohio St., 580, do not touch the point in controversy, because most of those were where a woman had been married to one man leaving issue, and afterwards married another man, different from the first husband, and then claimed curtesy as against the issue of the first marriage. Great stress is laid by plaintiff in error, in his brief, on the fact that there was a divorce originally between these parties We claim that the re-marriage of these two people entirely obliterated all effect of the divorce, and left them as if they had been married all the time, and no divorce ever granted between them. In construing that statute, the court will look at the reasonableness of the language and the intention of the legislators when passing the same. Henry v. Trustees, 48 Ohio St., 671.
    The purpose of the legislature in passing the statute cutting the surviving husband out of curtesy of property that didn’t come to his wife by deed or gift, either from himself or ancestors, as against the issue of said wife by a former marriage, was, that he was in no wise responsible for the care and maintenance of the children of a former husband. The law then very properly steps in and says, as you are not liable for the care and maintenance of some other person’s children, we will not let you step in and take any benefit of their property, but the case at bar is entirely different, these children were his. He was, at all times, bound to maintain and support them as much as he was bound to maintain and support the child born after his second marriage to the said Elizabeth Blum, deceased. That being the fact, the reason for the distinction between this second marriage and his first marriage, and the intention of the legislators as to a former marriage, fails.
   By the Court.

It is admitted that the question presented is to be determined by the provisions of the act of March 1, 1869 (66 O. L., 21) amending section 17 of an “act regulating descents, etc,” The section thus amended is as follows: ,

“Nothing in this chapter shall be so construed as to affect the right which any person may have to any estate by curtesy or in dower, in any estate of anyx deceased person, and surviving husbands whether there be issue born during the coverture or not, shall be entitled to the estate of their deceased wives by the curtesy; provided, however, if any deceased wife leaves issue or legal representative of such issue by a former marriage, her surviving husband shall not be entitled to an estate by the curtesy in the interest of .such issue, or legal representative of such issue, in her estate, unless the estate came to the deceased wife, by deed of gift from the surviving husband, or by devise or deed of gift from his ancestors, ’ ’

Counsel for the defendants in error contend, and the circuit court held, that in a ease presenting the facts here found the phrase “a former marriage” in the proviso of the act should be read “a former husband.” That position is not well taken. The terms of the statute are entirely free from ambiguity. It is not a remedial statute indicating a purpose to which the natural meaning of some of its terms may be deemed subordinate. It is a legislative declaration of a rule of public policy whose clearly expressed terms should be enforcd by the courts. The surviving husband is entitled to curtesy as against the child of the second marriage, but to no interest whatever as against the children of the former marriage.

Judgments of the circuit court reversed, and cause remanded to the court of ‘common pleas for further proceeding in accordance with this opinion.  