
    Patterson v. Lamson.
    
      Descent and distribution — Pules of construction — Deed of gift — Deaitals—Parol proof — Pev. Stats., secs. 4158, 4159.
    1. Under the statutes of descent and distribution, the. course of descent of real estate is to be controlled by the legal title.
    2. Where the intestate’s title to real estate is free from controversy, in determining its course of descent and whether it is ancestral or non-aneestral property, the statutes of descent and distribution are not to be construed and administered upon equitable principles, but by rules of law.
    3. In determining, in such case, whether an instrument for the conveyance of land is a deed of gift or a deed of purchase, its recitals of the payment and receipt of the consideration are material; and a recital in such deed that the conveyance by the named grantor to the grantee is made in consideration of a specified sum of money received by such grantor from the grantee, so far concerns the operation and effect of the deed as that it is not competent to show, by parol proof, that such instrument is, in fact, a deed of gift from a person not named in it, and that the named consideration wa3 in fact paid by him.
    4. A father desiring to make his daughter a wedding gift, bargained for a tract of land, paid the agreed purchase price in money, and caused the vendor to convey it to the daughter just prior to her marriage. She thereafter died intestate, and without issue, leaving her husband surviving her. Held: The title to the land did not come to her “ by deed of gift from an ancestor,” within the meaning of section 4158 of the Revised Statutes, and the land, upon the death of the wife, descended to the husband in fee-simple under section 4159 of the Revised Statues, which provides that if the estate came not by devise, descent, or deed of gift, it shall, if there be no children or their legal representatives, descend and pass to the husband or wife relict of the intestate.
    (Decided March 22, 1887.)
    Error to tbe Circuit Court of Cuyaboga County.
    Edward L. Patterson, the plaintiff in error, brought his action in the court of common pleas to quiet his title to a tract of land of which he was in possession. The case went on appeal to the district court, and was finally tried in the circuit court, whose judgment the present proceeding is brought to reverse. The real estate in controversy was owned in fee by one Alexander J. Sited, who, on the 19th of September, 1879, conveyed the same by warranty deed to one Lillian E. Holbrook. This deed recites that Sked and his wife, “ the grantors, in consideration of six thousand dollars ($6,000), received to our full satisfaction, of Lillian E. Holbrook, the grantee, do grant, etc., to said grantee, her heirs and assigns, the following described premises ” — describing the land in controversy.
    On October 4, 1879, Lillian married one Charles W. Burrows, and on September 20, 1881, died intestate and without issue. The defendants in the action assert an estate in reversion in the lands in controversy after the death of the husband of Lillian, and it is against this claim that the plaintiff seeks to quiet his title, ho claiming fee-simple estate in the land.
    The defendant interposed the following as a defense to the plaintiff’s suit:
    “ Defendants further answering, and for their second defense say, that long prior to the 17th day September, 1879, by virtue of proceedings had in the probate court of Cuyahoga county, in the state of Ohio, under the statute laws of said state, said Lillian E. Holbrook, in plaintiff’s petition named, became and was the legally adopted daughter of Thomas H. Lamson, of Cleveland, Ohio, hereinbefore referred to; and that, by reason thereof, said Thomas H. Lamson was, at the death of Lillian E. Holbrook Burrows, possessed of all rights of inheritance from her as regards said described property, just as fully and to the same extent as he would have been, had Lillian E. Holbrook Burrows been his daughther as issue of his own body.
    “That sometime prior to the 17th day of September, 1879, and after Lillian E. Holbrook became his adopted daughter as aforesaid, and in view of the approaching marriage of his daughter Lillian E. Holbrook with Charles W. Burrows, and desiring to make Lillian a wedding gift, Thomas H. Lamson, in person, entered into negotiations with Alexander J. Sked, the then owner of the property in plaintiff’s petition decribed, for the purchase of the same, and soon thereafter concluded the negotiations and did purchase of Alexander J. Sked the described property, at and for the sum of six thousand dollars, and with his own money paid Sked for the same in cash the price agreed upon.
    “ That after the sale by Sked and purchase by Lamson of the property had been fully agreed upon and determined as between the parties thereto, Lamson instructed and directed Sked to make his deed of the property direct to Lillian E. Holbrook, which was accordingly done on the 17th day of September, 1879; and the deed thus made by Sked under and by the express direction and instruction of Lamson directly to Lillian E. Holbrook, is the deed referred to in plaintiff’s petition, and was delivered by Sked to Lamson, and was by him placed on record in the records of Cuyahoga county; and that he retained the deed in his possession until the night of the marriage of Lillian E. Holbrook to Charles ~W. Burrows, to-wit: October 7, 1879, at which time Thomas H. Lamson delivered the deed to his daughter Lillian as a wedding gift, thus vesting in her the equitable title of the property, the legal title to which had been conveyed to her by Sked in pursuance of the express instructions and directions of Thomas H. Lamson; and that as aforesaid, and in no other way, did Lillian E. Holbrook, wife of Charles W. Burrows, become vested with the title of the described property.
    
      “ Defendants further say, that the actual possession of the property was delivered by Sked to Lamson in person, and that Lamson retained the possession of the property for several weeks, during which time he spent a large sum of his own money in repairing and improving the property; and that Lillian E. Burrows did not come into the actual possession of the property until after her return to Cleveland, Ohio, from her wedding trip, to-wit: about the middle of November,. 1879, and was then put in possession of the same by Lamson, and not otherwise; that Lillian E. Burrows died intestate and without issue on the 4th day of September, 1881, leaving said Charles "W. Burrows, her husband, and Thomas H. Lamson, her father by adoption, surviving her; that Thomas H. Lam-’son died intestate and without issue, on the 17th day of August, 1882, leaving the defendant Abigail Lamson, his wife, and the defendants Isaac P. Lamson and Samuel M. Lamson, his brothers, and the defendants Mary A. Gleason, Salina M. Campbell, Esther Judson and Lucinda Camp, his sisters, surviving him.
    
      “ Defendants further say, that by reason of the facts herein-before set forth, said described property in the possession and ownership of said Lillian E. Burrows at the time of her death, was ancestral property coming to her from her father as aforesaid, and that all the title or estate in the property that descended to or vested in her husband, Charles W. Burrows, was a life-estate therein; and that if the plaintiff has any right or title in or to the property, it is only an estate during the life of said Charles W. Burrows, surviving relict of said Lillian E. Burrows.”
    The plaintiff’s demurrer to this answer was overruled, and judgment rendered for defendants. The action of the circuit court in overruling this demurrer is assigned for error.
    
      T. JE. Burton and George L. Bake, for plaintiff in error.
    For the purposes of descent and distribution, two classes of real estate are recognized by the laws of Ohio : Ancestral property, title to which came to the decedent by descent, devise or deed of gift from an ancestor; and non-ancestral property, title to which did not so come to decedent. Rev. Stats., secs. 4158, 4159. All real estate must be embraced in one or the other of these classes. By the policy and laws of this state, as well as that of many other states, a distinction is made between these two classes; and the fact of an estate belonging to one or the other of them is an inherent and distinguishing quality of such estate, dependent upon the deed, will, or act of law by which it is created.
    Defendants claim that the real estate m question is ancestral property, title to Avhich came to Lillian H. BurroAvs by deed of gift from an ancestor, to Avit, Thomas H. Lamson.
    Four distinct considerations disprove this claim.
    1. Title did not come to Lillian H. Burrows by deed of gift.
    Whether an estate created by deed is ancestral or not depends, under the statute, both upon the deed by Avhich it was created and the person from whom it came. As to the former particular the deed must be the sole evidence. An important quality of the estate created thereby depends upon Avhether the deed is or is not a deed of gift; and where the deed, of itself, determines this point, to vary it by parol would be contrary to settled rules of evidence. Greenl. Ev., secs. 275, 305; Stone v. Vance, 6 Ohio, 246; Serviss v. Stockstill, 30 Ohio St. 418.
    The deed in question does show, on its face, that it was not a deed of gift. Parties and privies to a deed, as regards any claim of title to the land conveyed by such deed, cannot prove a consideration different in kind from that described in it, except in cases of fraud, accident and mistake. Taggart v. Stanbery, 2 McLean, 543; Burrage v. Beardsley, 16 Ohio, 438-442; Vail v. McMillan, 17 Ohio St. 617-622; Williams v. Williams, 3 W. L. M. 258; Clifford v. Baessman, 41 Wis. 597; McConnell v. Brayner, 63 Mo. 461; Mason v. Buchanan, 62 Ala. 110; Galbreath v. Cook, 30 Ark. 417; Potter v. Gracie, 58 Ala. 303; s. c. 29 Am. Rep. 748; Harpur's case, 11 Coke Rep. 24, b; Clarkson v. Hanway, 2 P. Wms. Rep. 204, 205; 2 Whart. Ev., sec. 1048.
    2. Title did not come to Lillian H. Burrows by deed from Thomas H. Lamson.
    
      “ The title to real estate wbicb must have come to an intestate by devise or deed of gift from an ancestor, to constitute ancestral pi’operty, is the title under which the intestate immediately held.” Brower v. Hunt, 18 Ohio St. 311; Prickett v. Parker, 3 Ohio St. 394; Curren v. Taylor, 19 Ohio, 36; Cliver v. Sanders, 8 Ohio St. 504; Gilpin v. Williams, 17 Ohio St. 397; Gardner v. Collins, 2. Pet. 58; Clark v. Shailer, 46 Conn. 119; Wheeler v. Clutterbuck, 52 N. Y. 67.
    3. Lillian H. Burrows acquired the legal title from a stranger. Where a legal title and an equitable title unite in the same person, the legal title governs the course of descent.
    (a.) It is a general rule, that when the legal and equitable estates combine in the same person, the legal alone remains. 4 Kent Com. 102; Forbes v. Moffatt, 18 Ves. Jr. 390; Belt v. Tenny, 29 Ohio St. 243.
    (6.) In tracing title by descent, the general rule that the legal title controls has been invariably applied. Nicholson v. Halsey, 1 John Ch. 416; Shepard v. Taylor, 3 Atlantic Rep. 382; Goodright v. Wells, Douglass, 771; Selby v. Alston, 3 Ves. Jr. 339; Brydges v. Brydges, 3 Ves. Jr. 120; Mason v. Day, Prec. Ch. 319; 3 Cruises Dig. 383; 3 Pres. Con. 327; Doe v. Morgan, 7 T. R. (Durn. & East), 103; Price v. Langford, 1 Salk. 337; Martin v. Strachan, Willes, 444.
    4. Thomas H. Lamson, the adopting father, was not the ancestor of Lillian H. Burrows, his adopted child, within the meaning of the statutes of descent and distribution.
    
      
      (a.) An ancestor may be defined as “ any one from whom the estate Avas inheritable in right of blood.” Lathrop v. Young, 25 Ohio St. 451, 464.
    (b.) The artificial relation created by adoption did not. make him her ancestor, or give him capacity to inherit from. her. Upson v. Noble, 35 Ohio St. 655.
    Our statute does not justify any other interpretation. In interpreting statutes providing for adoption and defining its legal consequences, the courts, in all matters pertaining to inheritance of property by or from the adopted child, have jealously guarded the distinction between adopted and natural children. Statutes on the subject, being in derogation of the common kw, are strictly construed. Upson v. Noble, supra; Tyler v. Reynolds, 53 Iowa, 146; Keegan v. Geraghty, 101 Ill. 26.
    In numerous cases the right of the adopting parent, or his kindred, to inherit from his adopted child has been denied. Barnhizel v. Ferrell, 47 Ind. 335; Reinders v. Koppelman, 68 Mo. 482; Hole v. Robbins, 53 Wis. 514; Burger v. Frakes, 67 Iowa, 460; Commonwealth v. Powel, 20 Cent. L. J. 343; Schafer v. Emeu, 54 Pa. St. 304; Quigley v. Mitchell, 41 Ohio St. 375.
    
      Caskey & Calhoun, for defendants in error.
    The title to the property in question came to Lillian H. Burrows by deed of gift.
    We take issue Avith the position of the plaintiff that the recital in the deed “in consideration of six thousand dollars received to our full satisfaction of -Lillian E. Holbrook,” determines conclusively that the deed is a deed of purchase and not of gift, and that Ave cannot inquire into the facts, because (1) the recital is not of that character of Avhich the Lav forbids contradiction, and (2) it is not absolutely necessary for us to contradict any recital contained in the deed.
    It is not the province of a deed to determine upon whom the estate shall be cast in case of the death of the grantee. The deed in question passed a title in fee. We do not seek to challenge the title thus conveyed, but simply to determine who owns the title under the statute of descent and distribution. It is not sought to limit, change or vary the estate granted by the deed, but to show that the estate came to the grantee as a gift from an ancestor, and, therefore, follows a different line of descent. The proof we seek to make is necessary to determine in whose favor the statute shall operate. Under the laws of Ohio, two elements enter into the descent of property — the nature of the property and the kinship of the claimant. The determination of one question is as much open to parol proof as the other. Parol testimony is admissible to show whether the property of the intestate is real or personal; just as pertinent is the question as to whether it is ancestral or non-ancestral. And we claim in this case that parol testimony is just as admissible to prove that the property is ancestral as it would be to prove the deceased woman the child of Thomas H. Lamson. In neither case do we, in the slightest degree, impeach, change or invalidate the effect and operation of the Sited deed. In one case we simply identify the nature of the- property, and in the other we identify the person who is heir:
    Parol testimony is permitted to establish a resulting trust. Byers v. Wackman, 16 Ohio St. 440. To establish an express trust. Mathews v. Leaman, 24 Ohio St. 623; Harvey v. Gardner, 41 Ohio St. 642. To determine advancements to children. Speer v. Speer, 14 N. J. Eq. 240; Meeker v. Meeker, 16 Conn. 383. To transform a deed absolute on its face into a mortgage. Miami Ex. Co. v. Bank of U. S., Wright, 249. To establish rights of husband in property held in name of wife. Abb. Trial Ev. 170. And right of wife in property held in name of husband. Newton v. Taylor, 32 Ohio St. 399.
    A recital to work an estoppel must be of some material fact, and must have been intended by the parties to the instrument that it should have that effect. Stroughill v. Buck, 14 Q. B. 781; Young v. Raincock, 7 Com. B. 310; Bigelow Es. 299, 310; MoCrea v. Purmort, 16 Wend. 460; Brinegar v. Chaffin, 3 Dev. 108.
    The acknowledgment of the receipt of the consideration is not conclusive as to either the kind of consideration passing, the fact of payment, or by whom it was actually paid, but may be explained or disputed. McCrea v. Purmort, supra.
    
    The money paid for the property was the money of Lamson. Whose money it was that paid for the j>roperty is a fact not embraced in or covered by the recitals of the deed. It does not necessarily follow that because Lillian E. Holbrook paid the consideration to the grantor, that the money paid was her money.
    A recital to work an estoppel must be a recital of the identical fact upon which the right of the party hinges. The recital of a collateral fact, from which the existence of the material fact might be inferred, deduced or supposed, is not sufficient to create an estoppel. Kepp v. Wiggett, 10 Com. B. 35; Noble v. Cope, 50 Pa. St. 17; Parker v. Smith, 17 Mass. 413; Farrar v. Cooper, 34 Me. 394.
    A deed of gift, within the moaning of the statute, is any instrument transferring title of property which, in fact, the grantee receives and accepts as a donation or gift without having paid any valuable compensation or consideration therefor; and this either by way of advancement, or absolute gift. The plain intention of the statute is, that real property received from an ancestor, either by inheritance, by will or by conveyance during life, without having paid valuable consideration therefor, should, in the absence of lineal descendants, return to the channel from whence it came.
    The adopting parent, under the laws of 'Ohio., becomes the ancestor of the adopted child within the meaning of our statute of descent and distribution.
    An ancestor is any one from whom the intestate might have inherited the estate as heir in right of blood in the absence of other and nearer heirs. Birney v. Wilson, 11 Ohio St. 426; Brower v. Hunt, 18 Ohio St. 311.
    The legislation on the subject places an adopted child precisely in the position of inheriting from the adopting parent in “ right of blood.”
   Owen, C. J.

If the plaintiff below was not entitled to the relief sought, it was for the reason that the title he was seeking to quiet, came to Lillian E. Holbrook by deed of gift from Thomas H. Lamson.

The one fact which stands stubbornly in the way of this conclusion, is that the title did not come to her by deed of gift from Thomas H. Lamson. This fact not only stands at the threshold of our investigation, but confronts us at every step we take in it.

Section 4158 of the Revised Statutes, provides that: “ When a person dies intestate, having title or right to any real estate- or inheritance in this state, which title came to such intestate by * * * deecl of gift from an ancestor, such estate shall * * * if there are no children * * * pass to and vest in the husband or wife, relict of such intestate, during his or her natural life.” It is very clear that there is nothing in the recitals of the deed under which both parties claim title, to justify the claim upon which the judgment below is predicated. To establish that claim, it became necessary to invoke the aid of facts outside of the deed itself, which gave to the transaction which led to it, the legal effect of a deed of gift from Lamson to Lillian. These facts are stated in the second supposed defense of the answer, to which the demui’rer of the plaintiff below was interposed, and which the court below overruled. This action of the court is assigned for error; and is the one question to which we address our consideration.

The defendant in error maintains, through his counsel, that: “ The plain intention of the statute is that the real property received from an ancestor, either by inheritance, by will, or by conveyance during life, without having paid valuable consideration therefor, should, in the absence of lineal descendants, return to the channel from whence it came.” If this proposition be conceded to be sound, we are still far from the solution which would justify the judgment below.

By that judgment the property does not “return to the channel from whence it came.” It “ came ” from Sked, the grantor. The negotiations for the purchase were conducted on the part of Lamson, certainly for the benefit of Lillian, and with the single view of making her a wedding gift. The deed was made direct to her, and although the answer states that it was retained by Lamson until tbe nigbt of tbe marriage, it had theretofore been by him placed on record, in tbe records of Cuyahoga county. Tbis was a delivery to Lillian. True, while tbe answer states that on tbe marriage nigbt Lamson delivered said deed to bis said daughter Lillian as a wedding gift, thus vesting in her tbe equitable title to tbe property,” it also avers that tbe legal title bad already been conveyed to her by Sked in pursuance of tbe express instructions and directions of Lamson. It is not easy to see bow or when tbe legal and equitable title were ever severed. It was not contemplated at any time that Lamson should bold tbe equitable title. The only logical conclusion from tbe facts stated in tbis answer is, that when tbe legal and equitable title to tbis land passed from Sked it became vested in Lillian. At no time did Lam-son contemplate that be should retain any beneficial or equitable interest in it. Tbe delivery of tbe deed for record raised tbe presumption of its delivery to Lillian, and there is nothing to rebut tbis presumption. Mitchell v. Ryan, 3 Ohio St. 377; Black v. Hoyt, 33 Ohio St. 203; Hammell v. Hammell, 19 Ohio, 17. Tbe averred delivery to Lamson by Sked is explained by other averments, which show that tbe possession was for tbe purpose of improving tbe property for tbe benefit of Lillian, who was tbe only person then entitled to tbe possession. We feel justified, therefore, in concluding that there was no time during tbe transactions detailed in tbe answer when tbe legal and equitable title to tbis property were severed. No contingency was contemplated by Lamson, nor, so far as tbe facts appear, by Sked, in which tbe former was to be or become beneficially interested in this property. From first to last Lillian was the proposed beneficiary of tbe purchase, which was to be enjoyed by her and her future husband. Tbe controversy which chiefly engages tbe discussion in tbis case, arises from tbe necessity of showing facts outside of tbis deed which are expected to impart to it tbe essential qualities of 'a deed of gift from Lamson to Lillian. Counsel are practically in accord that oral evidence is not admissible to contradict tbe material recitals of tbe deed for tbe purpose of fixing its character as a deed of gift from an ancestor. The defendants in error maintain that: “ The recital in said deed which we seek to contradict, is not of the character which the law forbids contradiction of; and it is not necessary for us to contradict any recital in said deed.” The claim is that the recital, In consideration of $6,000, received to our full satisfaction of Lillian E. I-Iolbrook,” is not contradicted by showing that the consideration paid was the money of Lamson. That the deed is silent upon this fact. The right to show, by oral evidence, that the consideration was in fact furnished by another than the grantee named in the deed, is predicated upon the legal proposition that recitals in a deed are estoppels only when they are of the essence of the contract; that is, where, unless the facts recited exist, the contract, it will be presumed, would not have been made; and upon the assumed fact that neither party to this deed intended to determine the course of descent the property should follow; that they were not negotiating with a view to any such contingency. In this connection counsel assert that: “ The idea that any recital contained therein would thereafter determine the line of descent, never entered their heads, except so far as the transfer of title from one to the other would control the same,” etc.

In this we are left entirely to conjecture. How may we know that this form of transfer of the title to Lillian was not deliberately adopted by the alleged ancestor, Lamson ? That he looked with approval upon the union which he was about to assist in celebrating by a munificent wedding gift, which the future husband of his child was destined to enjoy in common with her, is abundantly attested by the gift itself. How can we know that he did not adopt this method of transfer as a form of marriage settlement, or as a form of transfer which should inure to the benefit of both parties to the marriage by conferring such a title as, in case of - the death of his child, would leave the surviving husband in the enjoyment of a-marketable fee-simple estate? "While we are left entirely to conjecture, it seems most reasonable that we should rest our conclusion upon the natural and legal hypothesis that the parties at least intended to do what they did, and to do it as they did. It seems to us rather a free construction of this deed to assume that it is silent upon the the question of who furnished the consideration named in it. But one inference can be gathered from it, and that is that Lillian was the purchaser of the property, and paid the named consideration for it. It is this recital which, more than any other in the deed, imparts to it the character of a deed of purchase, as distinguished from a deed of gift from one whose name nowhere appears in it. Here is a deed which, upon its face, justifies but one construction ; that it is a deed of purchase from Shed to Lillian E. Holbrook. To say that it is not contradicting its recitals to to prove that in fact it is a deed of gift from one who is not named in it to the grantee, is a theory which we are not prepared to adopt. That the' consideration clause of the deed may not, in any case, be contradicted, we are not called upon to declare. In many cases — -in fact in most cases — the consideration recitals in a deed have little or nothing to do with the effect of a deed, or with the title conveyed. But in the case at bar, how can it be said that these recitals have no relation to the effect of the deed, or the nature of the title conveyed ? While it may be said that the quality of real estate as ancestral or non-ancestral property, is never inherent in the estate itself, it does not follow that the character of a deed, as a deed of purchase or a deed of gift, has no relation to the quality of the estate as ancestral property or otherwise. The character of the deed as a deed of purchase or a deed of gift was determined at the time it was made and delivered. How can it be said that the form of the deed, as respects its recitals of consideration, can have no effect upon the kind of estate it conveyed, when the one questioh which has so long protracted the contention in this ease, is whether the deed was a deed of gift or of purchase ?

Our conclusion, upon this question is, that in determining whether an instrument for the conveyance of land is a deed of purchase or a deed of gift, we may look to its recitals, and that a recital in such a deed that the conveyance by the named grantor to the grantee is made in consideration of a named sum of money received by such grantor from the grantee, is of the essence of the deed, and so far concerns its operation and effect as that it is not competent to show, by parol proof, that in fact such deed was a deed of gift from a person not named in the deed, and that the named consideration was in fact paid by him.

II. In determining whether real estate is ancestral or otherwise, the course of descent is to be controlled by the legal title. In Shepard v. Taylor, (R. I.) 3 Atlantic Rep. 382, it was held: “ When a legal estate in reality and an equitable one, coming through different persons, unite in the same holder, the course of the legal estate, and not that of the equitable, determines whether the holder of both does or does not have an ancestral estate.”

This view is sustained by Chancellor Kent in Nicholson v. Halsey, 1 Johns. Chan. 416. Also by Goodright v. Wells, Douglass, 771; Selby v. Alston, 3 Ves. Jr. 338. As we have already seen, the legal title to the real estate in controversy was never vested in Lamson. We have also seen, that when the legal title became vested in Lillian there remained no equitable interest in any other person. The transaction was as if Lamson had made a gift of $6,000 to Lillian, and with it she had made this purchase. So far as the conduct and intention of Lamson appear by this answer, the legal and equitable title passed immediately and at the same time from Shed to Lillian, and however we may characterize the transaction as between Lamson and the other parties to it, it certainly was not a conveyance of real estate by deed of gift from him to Lillian.

III. The only estate that Lamson parted with was six thousand dollars in money. The doctrine of equitable conversion finds no place for its exercise in the case at bar. It is peculiarly an equitable doctrine. While it may be invoked, in a proper case, in fixing the title in the person entitled thereto under the immediate operation of a deed, it is never employed in determining the course of descent where the title is so fixed. In such case, the course of descent is to be determined by rules of law. In the case at bar, there is no controversy concerning Lillian’s title. By the concession of all parties she was vested with a fee-simple estate in the lands in controversy. This being so, the law can alone determine the course of descent. Our statutes of descent and distribution are not to be construed or administered by the rules of equity. Foster’s Appeal, 74 Pa. St. 391, 898-9; Armington v. Armington, 28 Ind. 74, 76.

IV. We are not left without the light of adjudication, however, upon the questions involved in this controversy.

In Brower v. Hunt, 18 Ohio St. 311, it was held:

“The 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 the title under which the intestate immediately held.”

And, “ Where specific tracts of land had been allotted to codevisees in pursuance of directions in the will of their ancestor, and, afterwards, one conveyed his tract to a co-devisee for a monied consideration as expressed in the deed, but in fact for a like conveyance, by the latter, of the tract he had received in the partition; held, that the title of neither was derived directly by devise from the ancestor, and that, for the purposes of descent, each was to be regarded as a purchaser.”

Upon this branch of the case, White, J., says, in the opinion:

“The remaiáing question is as to whether the lands described in the first cause of action, came to Thomas Hunt by devise from his father. In our opinion they did not. The •title mentioned in the statute is the title under which the intestate immediately holds. The title to these lands came to Thomas by deed of conveyance from Jacob, and the character of the consideration cannot alter the fact, and make that a title by devise from the ancestor which was in fact- a title 'by deed from Jacob. There was no mistake in the partition which the deeds between Jacob and Thomas were merely designed to correct. Without the conveyance from Jacob, Thomas had no title to these specific lands, legal or equitable; yet the operation of the will was the same without the deed as with it. The title of Thomas, therefore, cannot be said to have come to Tiim directly by devise from his father; and for the purposes of descent he must be regarded as a purchaser.”

There are weightier considerations pointing to the ancestral character of the property involved in. the case last cited than in the case at bar. The lands conveyed to Thomas came from the ancestor. The consideration for the conveyance came from the ancestor and came in land. No money consideration — no lands except ancestral lands — -intervened to affect the question.

All that could be said was that the title of Thomas did not technically come to him “ directly/’ by devise from an ancestor. The case holds that the character of the consideration cannot affect the estate as ancestral or non-ancestral property.

The logic of this case solves the case at bar. Lamson, the alleged ancestor, did not, it is conceded, directly deed these lands to Lillian. And, whatever right or equity he may have had in them as between himself and Sked after the negotiations for the purchase, and before the deed was executed, as between himself and Lillian he did not even indirectly convey the land; for he neither held nor claimed any interest, legal or equitable, asagainst her; and whatever rights the defendants assert, they claim through her.

It follows, therefore, that with or without the aid of proof of facts different from those recited in the deed, the defendants are not able to establish the one fact indispensable to their defense, that the property in question came to Lillian by deed of gift from an ancestor.

The facts alleged in the answer failed to constitute a defense, and the demurrer was well taken.

There was error in overruling it.

The views already expressed relieve us of the consideration of the questions arising upon the relation of Lillian to Lamson as his adopted child.

Judgment reversed.  