
    McColm et al. v. Orebaugh.
    (Decided February 24, 1931.)
    
      
      Messrs. Gardner, Freking é Overbeck, Mr. J. Q. Martin and Mr. David Davis, for plaintiffs in error.
    
      Mr. D. T. Hackett, for defendant in error.
   Ross, P. J.

This ease, an action to quiet title, comes to this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered in favor of the plaintiff, Hazel Orebaugh, present defendant in error.

The petition alleged that the plaintiff was the owner of and in possession of certain real estate therein described, that the many defendants claimed an estate and interest therein, and prayed that the defendants show their interest and the title to the real estate be quieted.

A joint answer was filed by the many defendants, Reuben McColm and others, alleging that Cyrus D. McColm, decedent, was a brother of one of the defendants, and the uncle of all other defendants; that he and his first wife purchased together the property described in the petition, and that his first wife died, no children being born of such marriage; that the title to such property was taken in the name of the first wife, and that she devised the same to Cyrus D. McColm, who upon her death became the sole owner of the same. Thereafter C. D. McColm married a second time; no children being born of this marriage. His second wife was Eva L. Mc-Colm, the mother of the plaintiff by a former husband. McColm deeded the property in question to his second wife; the language of the allegations in the answer being, ‘ ‘ The said Cyrus D. McColm executed and delivered a deed to his said wife Eva L. McColm in consideration of One Dollar and other good and valuable considerations, and at the date of her death she was the owner of said real estate in fee simple.”

McColm made a will devising all his property to his second wife, who predeceased him three days. This will was probated. She also made a will and executed a codicil whereby she devised all her property to her husband, Cyrus D. McColm. This will was also probated.

The plaintiff demurred to the answer, and the demurrer was sustained. The defendants not desiring to plead further, judgment was entered in favor of the plaintiff.

Under the facts alleged in the answer, the following conclusions are reached by the court:

First. By the deed from Cyrus D. McColm, reciting it to be in consideration of “One Dollar and other good and valuable considerations,” Eva L. McColm, the second wife, became the owner in fee simple of the property in question by purchase.

Second. The real estate in question came to Mc-Colm, the intestate, from a former deceased wife, Eva L. McColm, his deceased wife, by devise.

Third. McColm was the relict of Eva L. McColm, and died intestate and without issue, possessed of the real estate in question.

Fourth. Under the provisions of General Code, Section 8577, such real estate passes to and vests in the child of Eva L. McColm, the deceased wife of the intestate, McColm.

Section 8577, General Code, provides in part:

“When the relict of a deceased husband or wife dies intestate and without issue, possessed of any real estate or personal property which came to such intestate from a former deceased husband or wife by-deed of gift, devise or bequest, or under the provisions of section eighty-five hundred seventy-four, then such estate, real and personal, shall pass to and vest in the children of such deceased husband, or wife, or the legal representatives of such children. ’ ’

The plaintiff, therefore, as the child of the deceased wife, Eva L. McColm, under the statute takes title to the real estate of the intestate.

We have been cited to the case of Holmden v. Craig, 16 C. C. (N. S.), 157, 31 C. D., 461, as developing a case parallel to the one at bar. This case, however, is easily distinguished. In that case the husband, after taking the property under the will of his deceased wife, devised the same to persons in being at his death. In this case, had McColm so devised the property in question, or deeded it, no difficulty would have been presented in holding either the grantee or living devisees as entitled to take under the conveyance or will. However, McColm, having devised the real estate to one who predeceased him, died intestate, the devise having lapsed. It must be presumed that McColm was familiar with the provisions of Section 8577, General Code, and that, not having provided in his will for further taking in the event of the lapse of the devise, consequent upon the contingency of the predecease of the de-. visee, his second wife, he intended his estate should pass according to the laws providing for intestate descent and distribution, particularly Section 8577, General Code. He could have diverted the property from such descent so provided, but he did not.

We find no error in the judgment of the court of common pleas, and the same is affirmed.

Judgment affirmed.

Hamilton and Cushing, JJ., concur.  