
    Will et al. v. Will.
    (Decided April 22, 1929.)
    
      Mr. John A. Nieding, for plaintiffs in error.
    
      Mr. Henry Hart and Mr. H. R. Williams, for defendant in error.
   Williams, J.

Nicholas Will died testate May 7, 1899, leaving a last will and testament, which, in so far as it relates to the issues involved in this cause, reads as follows:

“Item 5th. After the death of my beloved wife, Anna C. Will, I give and devise to my two sons, John Will and Henry Will, all my real estate consisting of one hundred and sixty five (165) acres of land divided as follows: viz: To my son, Henry Will, I give the homestead where I now reside containing fifty (50) acres of land, also the thirty (30) acre tract lying on the east side of the so-called Nuhn farm, and bounded on the east by lands owned by one Smith. And to my son, John Will, I give the so-called Nuhn farm, containing sixty (60) acres of land, also the twenty five (25) acre tract lying on the north side of the road and known as the Cook land, and bounded on the east by land owned by Smith, and on the west by land owned by Nicholas Eifert. All of the aforesaid property lying in the Township of Vermillion, County of Erie and State of Ohio.
“The aforesaid gifts and bequeaths are subject to the following conditions: That each of my sons, John Will and Henry Will, shall pay to my son, Charles Will, if he be alive at the death of my said wife, the sum of six hundred dollars ($600.00) each, to be paid in three equal annual payments from the date they come in possession of said land, with interest at six per cent per annum.
“And the said John Will and Henry Will shall each pay to my daughter, Eliza Kuhn, the sum of five hundred dollars to be paid in six equal annual payments from the date they come in possession of said land, without interest.
‘ ‘ The aforesaid payments shall be a lien upon said lands until paid.”

Thereafter Anna C. Will, named in the will, died. In 1909 Henry Will paid to Charles Will and Eliza Romell, nee Kuhn, the bequest mentioned in said will, and received from them a quitclaim deed to the premises in question. Subsequently Eliza Eomell died, survived by her only child, Alice Schaatz. Henry Will thereafter married, and on October 21, 1922, died intestate, having at that time the title of the real estate so devised to him by Nicholas Will, and leaving no children or other legal representatives, but leaving surviving him only his widow, Anna C. Will, and the following next of kin: John Will and Charles Will, brothers of the whole blood, and Alice Schaatz, daughter of Eliza Romell, a sister of the whole blood. Anna C. Will, widow of Henry Will, began an action in the court of common pleas of Erie county seeking to quiet title to said premises, upon the theory that, under the last will and testament of Nicholas Will, her deceased husband, Henry Will, acquired title to the property in question by purchase. The defendants to the action were Alice Schaatz, Charles Will and John Will, who claimed the property as heirs of Henry Will upon the theory that the property came to him by devise, and Alice Will, John Schaatz, and Ora R. Romell, who claimed some interest in the premises by way of dower.

The court of common pleas, holding that the property came to Henry Will by purchase, and that the plaintiff was the owner thereof, sustained the demurrers of the plaintiff to the cross-petitions of the defendants, Charles Will, John Will and Alice Schaatz, and the defendants not desiring to plead further judgment was entered in favor of the plaintiff quieting her title to the premises.

The sole question involved is whether or not Henry Will took the property by devise or by purchase. If he took it by devise it was ancestral property. If he took it by purchase, it was nonancestral property.

By the terms of Sections 8573 and 8574 of the General Code, in force at the time of the decease of Henry Will, the widow took a life estate in ancestral property and an estate in fee simple in non-ancestral property. We think the principle announced in Naus v. Vorndran, Admr., 116 Ohio St., 327, 156 N. E., 450, is not applicable. In that case the testator made a will by which he provided that Ms son should have the privilege of buying his farm upon certain terms and conditions, and, when he acquired title thereto by complying with such terms, it was held that the title was acquired by purchase. In the instant case the testator devised to Henry Will certain property, stipulating that he should pay certain legacies which would be a lien thereon, and under the terms of such will the devisee, by acceptance, would acquire the property by devise, and paying off the legacies which were a lien upon the property would not change the character of his title. Case v. Hall, Admr., 52 Ohio St., 24, 38 N. E., 618, 25 L. R. A., 766.

The facts alleged in the separate cross-petitions of the defendants, Charles Will, John Will, and Alice Schaatz, were sufficient to constitute a cause of action against the plaintiff. The court committed prejudicial error in overruling the demurrer to such cross-petitions. The facts alleged in the petition, as well as in the cross-petitions, show that each of the three cross-petitioners is the owner of an undivided one-third of the premises in question, subject to the life estate of the plaintiff, Anna C. Will. It follows that the petition itself does not state a cause of action.

For the reasons given, the judgment of the court below will be reversed, and the cause remanded, with directions to overrule the demurrers of the plaintiff to the cross-petitions and for further proceedings not inconsistent with this opinion.

Judgment reversed and cause remanded.

Lloyd and Richards, JJ., concur.  