
    William L. Lane v. Andrew J. McKinstry et al.
    The provision in the statute of descents in favor of the surviving husband or wife of the intestate, applies only where the intestate dies seized of the estate. Hence, where a daughter dies before her father, her surviving husband can inherit nothing from her father’s estate, as her legal representative.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Butler county.
    The original action was brought by the plaintiff in error in the court of common pleas to recover a certain tract of land in the petition described.
    It appears from the petition that William McKinstry acquired the land by purchase, and that in October, 1874, he died intestate seized in fee simple of the same; that he left no wife or issué surviving him; but that the defendants are his brothers, and the children of. a deceased brother, and are in possession of the laud in controversy. That on the first day of January, 1856, the plaiutiff was married to Mary Jane McKinstry, the daughter and only child of said William McKinstry, the intestate, and that said Mary Jane died on the 9th day of March, 1857, intestate, leaving her only child, the issue of said marriage, surviving her, which died January 18, 1860.
    The plaintiff avers that he is the only legal representative of Mary Jane, his deceased wife, and that as such he is the only heir of'the intestate, William McKinstry, and is seized in fee simple of said land and entitled to the possession thereof.
    A demurrer to this petition was sustained and the petition dismissed.
    On error the district court affirmed the judgment.
    It is now sought to obtain the reversal of these judgments.
    
      Thomas Millihin, for the motion :
    The statute (S. & S. 305) provides :
    “ Sec. 2. That if the estate came not by descent, devise^, or deed of gift, it (shall) descend and - pass as follows Eirst. To the children of the intestate, and their legal representatives. . . . Third. If the intestate leaves no-
    _ husband or wife relict of himself or herself, the estate shall pass to the brothers or sisters of the intestate,” etc.
    It will be seen that the children of the iutestate, and’ their legal representatives, stand before the- brothers and sisters in the order of descent, and the only question in the case is, whether the husband is the “ legal representative ” of his rvife, the child of ¥m. McKinstry.
    I. If the wife had survived her father, ¥m. McEi-nstry, she would unquestionably have inherited, and if, after being seized, she had died intestate, and without children, then her husband would have inherited from her—would have been her “ legal representative.”
    If she acquired by descent, her husband would'have-taken a life estate under 2d subdivision, 1st section. (S; & S-..304.)
    If she had acquired by purchase, her husband would have taken a fee under 2d subdivision, section 2:. (S.. & Si 305.) '
    In either view, the husband, in the absence of issue of the wife, is her “ legal representative,” and is entitled to recover possession of the land.
    But Mrs. Lane did not survive her father, and I claim that her husband, ¥m, P. Lane, stands in her shoes, and inherits just what she would have inherited, He does-not inherit from his wife, for she was not seized, bnt he stands in her place in the order of descent—as her legal representative. As the property would, if she had survived her father, have been hers in fee, so, in her absence, it is her husband’s in fee.
    If the husband in this case is not the “ legal representative ” of the wife, who is ?
    The words, “ legal representatives,” mean (1) Mrs. Lane’s children, if any survived; (2) in the absence of her children, the words mean her husband. If this is not the true construction, the words are meaningless.
    I apprehend that the whole difficulty in coming to the conclusion I insist upon is this : We are unused to treating the husband as an heir.
    At common law no one could be an heir unless he was related by blood. At common law a husband could not inherit from his wife, but our statute has incorporated a new element into the law of descents, and has said that the husband, in the absence of children, shall be his wife’s heir.
    In nearly all the states, the language of their statutes of descents is, “ to their children and their descendants or issue.”
    In Ohio, the ordinance of 1787 provided for descent of real estate to children and the descendants. (1 Chase, 66.)
    The acts of 1805,1814,1815,1824 : “ To the children and their legal representatives.” (1 Chase, 515, 654,905, 1313.)
    The act of 1824 (see. 7) is the first that recognized the husband as the heir of his wife, but then it could only be when the intestate wife left “ no one of kin of her blood.” (2 Chase, 1313.)
    The act of 1831 (repealing the act of 1824) uses the same language, “ to the children or their legal representatives,” and re-enacts the provision making the husband his wife’s heir, in the absence of her blood kin. (3 Chase, 1790.)
    In 1835 the act was again amended, and the words “ to the children and their legal representatives ” are retained.
    The provision making the husband the heir of his wife, as to non-ancestral property in the absence of her blood kin, is also retained. (Swan’s Rev. Stat. 1841, p. 287.)
    In 1853 the inheritance is first cast upon “ the children and their legal representatives.” By this statute, if the property is ancestral, the husband gets a life estate, in the absence of children and brothers and sisters, and of the ancestor. If the property is non-ancestral, the husband inherited a life estate in the absence of children or their legal representatives. The husband took a fee only in the absence of auy one living entitled to inherit, and only to prevent an escheat. (Swan’s Rev. Stat. 1854, pp^231, 232.)
    In 1857 the act of 1853 was amended so as to give the husband, as to ancestral property, a life estate in his wife’s lands, in the absence of children and their legal representatives, and a fee if no one living could inherit. If the property was non-ancestral, in the absence of children and their legal representatives, the husband took a fee in his wife’s land. (S. & C. 501, sec. 3.)
    The act of 1865 as to ancestral property gives the husband a life estate in his wife’s land in absence of children and their legal representatives. But if it is non-ancestral, the husband, in the absence of children and their legal representatives, takes a fee in his wife’s lands. (S. & S. 304, 305.)
    This was the law in force at Wm. McKinstry’s death. The right of the husband to inherit his wife’s land has been gradually advanced since 1824.
    ¥e find that by the'act of 1805 the legislature deliberately abandoned the use of the words “to the children and their descendants” as used in the ordinance of 1787, and substituted a broader and more comprehensive expression, “to the children and their legal representatives.”. These latter words have ever since been retained in the descent acts. We may fairly presume that they were intended to embrace a larger class than “ descendants,” and to include all whom the legislature might thereafter see fit to designate as entitled to be the “ legal representatives” of -the wife.
    
      We have no right to limit the words “legal representative” to issue or descendants of the wife. The statute does not say “ legal representatives in blood,” and we have no right to add the latter words.
    The words “ legal representatives” have been defined in Rice -Y. White, 8 Ohio,. 216; 2 Jarman on Wills, 89, 40, 41; Steel v. Kurtz, 28 Ohio St. 194.
    The common law definition does not apply. Drake v. Rogers, 13 Ohio St. 27; Price v. Cox, 16 Ohio, 30; 2 Red-field on Wills, 425.
    
      Isaac Robertson, contra,
    claimed that it was only on failure of children and their legal representatives that husband or wife can inherit (S. & 8. 304, 305); that the wife must die having title or right to real estate in order that the husband may inherit.
   White, C. J.

The plaintiff in error seeks to derive title to the premises, under the statute of descents, as the legal representative of his deceased wife, the daughter of the intestate.

The wife never had any interest or estate in the premises. She died during her father’s lifetime, in 1857. The descent was not cast until her father’s death, -which occurred in 1874. '

The statute provides that it is only on failure of children or their legal representatives that the estate shall pass to and vest in the surviving husband or wife of the intestate. (S. & S. 304, 305.)

. The plaintiff’s construction of the statute leads to the following results:.

1. If his wife had survived her father, she would have inherited the premises in fee simple, and on her death without issue, the plaintiff, as surviving husband, would have taken only a life estate, the fee under the existing state of. facts passing to and vesting in the defendants. But under.the claim of the plaintiff, the fact that his wife predeceased her father, has the effect, under the statute, of investing him with the whole estate in fee simple.

2. If the wife of the intestate had survived him, and the daughter had died unmarried, as the estate came to the intestate by purchase, it would have passed to and vested in the wife of the intestate in fee simple. But if the claim of the plaintiff is correct, the fact of his marriage to the daughter defeats the estate to the mother, and vests it in him as surviving husband of the daughter. Thus the rights growing out' of a marriage to the child are placed on a higher footing, under the statute, than those growing out of the marriage to the intestate.

A construction of the statute which leads to such results can not be correct.

' But the decisive answer to the claim of the plaintiff is, that the provision in the statute in favor of the surviving husband or wife is special and exceptional in its nature. Brower v. Hunt, 18 Ohio St. 341.

The provision only applies where the intestate husband or wife dies seized of the estate, which was not the ease in the present instance. And whether the estate be ancestral or non-ancestral, the surviving husband or wife, as already remarked, can only take where the intestate left no children or their legal representatives. Hence the statute clearly distinguishes between the legal representatives of a child and the husband or wife of such child, and provides that the estate shall pass to the husband or wife only on failure of legal representatives.

The plaintiff, therefore, is not, within the meaning of the statute, the legal representative of his deceased wife; and on her father’s death, no part of his estate descended to the plaintiff.

Leave refused.  