
    Parsons et al. v. Parsons et al.
    
      Partition of lands of intestate — Children of deceased son charged with advancement — Law of inheritance.
    
    In the partition of the lands of an intestate among his children and the children of a deceased son, the portion which the latter inherit should be charged with an advancement made to their father by such intestate.
    ( Decided March 26, 1895.)
    Error to the Circuit Court of Trumbull county.
    This ease was tried on appeal in the circuit court of Trumbull county. On appropriate issues joined in a suit to partition the lands of George Parsons, who had died intestate, and upon a request that its conclusions of fact be stated separately from its conclusions of law, that court found that the principal plaintiffs in error, were the children and heirs at law of William B. Parsons, who was the son of said George Parsons; that on May 20,1873, George made a conveyance of real estate, of the value of $4,046.00, to William, that to the extent of $2,846.00, there was no valuable consideration therefor; that to that extent the conveyance was made to William and received by him as a part of his expected share of his father’s property, at the death of said George; that William sold and conveyed said lands and died insolvent, prior to the death of his father; that the principal defendants in error are the-children of said George, and, with the grandchildren aforesaid, are his heirs at law.
    As conclusions of law, the court found that to the extent of $2,846.00, said conveyance from George to William should be treated as an advancement made to the latter, and that in a division of the estate of George among his surviving children and his said grandchildren, it should be taken as a part of his estate, and charged against the share of his grandchildren therein.
    
      George M. Tuttle and Charles Fillius, for plaintiffs in error.
    It is conceded that if the son had survived his father and died, his children would, in regard to the legal estate left by their grandfather,, have stood in all respects in their father’s shoes. They would have inherited from him. But the real estate in question they inherit from their grandfather and in no wise from their father. In the proper legal sense they are the heirs of their father only in respect of estate of'which he died seized and intestate. They are not his heirs as the inheritors of the estate in question. Their father never had in it any interest of any sort and the laws of this state do not provide for descents from ancestors, save from those only who have some interest to descend. The estate which their grandfather had, is that which descended to. them, and the descent was immediate. Are the obligations of the grandchildren the same, nevertheless, as if their father had first inherited these lands and the grandchildren had inherited from him ?
    The subjects of descent in Ohio, we affirm to be completely and exhaustively regulated by statute law.
    The statute of March 14, 1853, 51 Ohio Laws, 499, was several times amended, but in no manner affecting’ the particular subject in question and its provisions are, with very close verbal conformity, adopted into the Revised Statutes, section 4158, and sequel. Penn v. Cox, 16 Ohio, 30; Drake v. Rogers, 13 Ohio St., 21; Brower v. Hunt, 18 Ohio St., 311; Patterson v. Lampson, 45 Ohio St., 77; Putnam v. Putnam, 18 Ohio, 347.
    The proposition we here make relates not to the meaning of the statute but to its comprehensiveness as a container of the law on the subject. Is the whole law on this subject to be found in this statute, or must part be looked for in some other code or source ?
    
      First — That the benefit conferred upon William B. Parsons, in the transaction in question, was in every part of it burdened with the obligation for the payment of money and was not a gift of real estate by way of advancement within the meaning of the statute, so as to distinguish the case from that of any burdensome obligation of the son to the estate of his intestate father.- ' First we have the transactions which are provided for in. the statute of descents and distribution. These provisions are contained in four sections of the statute. Sections 10 and 13, inclusive, of the act of March 14, 1853 (S. & C., 501), 51 O. L., 499-; Revised Statutes, sections 4169, 4172.
    Three things are apparent:
    1. One is that these provisions apply only when the intestate has disposed of a portion of his estate to a child or children or to his.heir or her descendants by gift. The equitable ground of the collation between the heirs is the gift by the parent as an advancement to the child or • grandchild.
    2. When these provisions do apply in the case of a gift, .the real estate which has been given, shall still be considered as a part of the estate of the intestate so far as it regards the division thereof among his lineal heirs, and it shall be taken by any child who is to be charged with the gift as a part of his or her share of the estate. When .partition has been made of the whole according to the principles given in these four sections, the legal title will be vested in severalty in the respective persons to whom the lands have been divided in the respective portions received by each. This legal estate maybe set aside only upon those principles by which executed title may be annulled.
    3. The statute provides how the amount of the advancement and of the charge upon the party advanced, shall be fixed, section 13.
    (1.) If the value of the estate shall be expressed in the deed of conveyance or in the charge thereof made by the intestate, or in the receipt in writing given by the person receiving such advancement, it shall be considered and taken to be of that value in the division of the estate. (2.) Otherwise the property shall be estimated at its value when advanced.
    We now come to another species of transactions between parent and child' or grandchild, where the alleged advancement stands only as the consideration, among other things, of a promissory obligation only, of the issue to account to the other heirs after their ancestor’s death for the property received. Such obligations appear to be referred to by learned judges delivering the opinions of the court in Needles v. Needles, 7 Ohio St., 432, 446; Rosenthal v. Mayhugh, 33 Ohio St., 155, 158.
    The rights attendant upon such a transaction, are to be determined by the laws which govern the enforcement of executory contracts.' They bind nobody which the party making the promise could not bind by his promise to be performed after the intestate’s death.
    The term gift is used in this statute. It is applied equally to personal as to real estate, and when it is used in that manner, it has signification which is as well settled, and is as clear as that of any term in the law. It is a transfer of title without consideration — a transaction which, by reason of its want of consideration, can never result in a change of property without the delivery of the thing which is given or some other act which is equivalent to such delivery. Hamor v. Moore's Adm'r, 8 Ohio St., 239; Flanders v. Blandy, 45 Ohio St., 108; Creed v. Lancaster Bank, 1 Ohio St., 1; Mitchell v. Ryan, 3 Ohio St., 377; Freeman v. Freeman, 43 N. Y., 34; Allison v. Burns, 107 Pa. St., 50; 8 Am. & Eng. Ency. of Law, title Gift, 1309, note 3, and cases cited.
    The case must not be confounded with that of a. gratuitous transfer of an equity of redemption with no assumption of the debt by the ■ transferee, Such was the transfer to a wife in Oliver v. Moore. 23 Ohio St., 473. In Hatch v. Straight, 3 Conn., 31, there appears to me an implied holding in regard to the principle here involved. Scott v. Scott, 1 Mass., 526; Myers v. Warner, 18 Ohio, 519.
    
      Second — An advancement to a child who dies before the parent, leaving children, does not independent of any testamentary provision or of some trust, rest upon the grandchildren as an obligation to account for the advancement, when they come to the estate of their grandfather, as his heir. "When grandchildren come into the succession of an intestate estate, it is as legal representatives o’f children. If grandchildren, coming into the succession, are under any circumstances to be charged with the obligations which would have rested upon predeceased parents, the subjection to this charge enters into their representative character and is a a part of it. But we are not allowed to say — we must not make the mistake of saying — that grandchildren are charged with those obligations by reason that they are representatives, nor ‘by reason that when they come into the succession the statute calls them such, nor that they can be so charged, unless the statute by an apt expression of legislative will, commands this burden to devolve on them. Destrehan v. Destrehan's Ex’rs, 4 Martin’s Rep. N. S., 557; Mackeldy’s Roman Law, by Dropsié, section 671, note 1; Toullier Treatise upon the Civil Law, title 1, chapter of Successions, section II, pi. 180; Moreau & Carleton’s Partidas, title 13, law 3; title 15, law 4.
    The fundamental distinction between represenation in the civil and in the common law, is compendiously pointed out by Kaimes’ Historical Law Tracts, No. 13. Holmes’ Common Law, section X, 3; Erskine’s Institutes, 792, pi. 11; 1 Chase, 516, section 17; Dutoit v. Doyle, 16 Ohio St., 406; Clayton v. Drake, 17 Ohio St., 367.
    The inquiry is thus brought in two portions of the statutes; sections 5-8, and sections 10-13, respectively, inclusive. The first portion relates to the proportions in which under the different conditions of relationship, the legal estate is conceived to descend, irrespective of advancements. The second relates to the effect of advancements. Both these portions relate affirmatively or negatively to the representation which characterizes grandchildren, as well as more remote issue, under our statute. The first has a very express and direct reference to this subject affirmatively. The second will, we believe, on examination, appear to have the effect of making issue, more remote than children, liable only. for advancements to themselves, and of excluding from representation by such issue all liability for advancements to predeceased parents. No other parts of the statute have any bearing on the subject.
    Under the principles of the common law no man is to be charged by the mere covenant or ag’reement of his ancestor in regard to any particular subject of real estate, unless the covenant were supported by some adverse interest in the subject then vested or then created in another. Pollock v. Spiedel, 17 Ohio St., 439.
    Under the statute of 1853, as originally enacted, there might, in order come into the succession, lineal descendants of children of the intestate; of his brothers and sisters of the whole blood ; of the half blood; of the children of the ancestor, in ease of an ancestral estate, from whom the estate came; of the brothers and sisters of such ancestor; and by virtue of an amendment of March 4,1865, 62 O. L., 32, all persons, who if living, would be entitled as next of kin of the intestate. All these persons come into the succession by statutory gift under the designation of legal representatives, and as sustaining the complete character of legal representatives, in the only sense of the term known to the statute. And unless descendants of children of the intestate are an exception, their character as legal representatives is that fixed on them by sections 5-8 of the statute. Now by these provisions these legal representatives take sometimes per stirpes and sometimes per capita. Evers 
      v. Follein, 9 Ohio St., 327; Dutoit v. Doyle, 16 Ohio St., 400.
    On the other hand, by civil law an important' feature was that whenever persons came into the succession in virtue of what was afterwards called representation, they took per stirpes and not per capita. The principle was fully adopted in the construction of the statute of Charles and in the American statutes, except those of Connecticut, framed to carry out that statute. Walsh v. Walsh, Precedents in Chancery, 54; Bowen v. Littlewood, 1 P. Wms., 594; Lloyd v. Tench, 2 Vesey Sr., 215; Earnest v. Earnest, 5 Rawle, 213; McConkey v. McConkey, 9 Watts., 352; Persons Appeal, 74 Pa. St., 123; 2 Am. Law of Admrs., 1216; Reeve on Descents, Introduction, XXXIII.
    It is therefore apparent that the definition of legal representative, which is derived from the statute of Charles, must be one which will exclude taking per capita and include only taking per stirpes; that which is derived from its use in the Ohio statute, must be that which will include both.
    As to the two portions of the statute in which, if anywhere, the provision must be found by which grandchildren are to be charged with advancements to a predeceased parent—
    First, are the provisions of sections 5 and 7. Section 7, it is said, gives to grandchildren who come into the succession with surviving children of the intestate, only the share to which their predeceased parent would have been entitled, if still living. And this is cited in support of the division in the court below. The answer is brief and is founded upon the direct provision of the statute.
    
      It is .impossible to suppose that the legislature of Massachusetts designed that either of the four sections adopted from their statute into the Ohio legislation should express what very clearly is expressed by section 11 of the Massachusetts statute. They did not design it to be expressed by section 6, the equivalent of section 10 of the Ohio statute.
    But here we have another consideration of particular importance in limiting the four sections of the Massachusetts statute and, by consequence, that of Ohio. By section 11 of that statute, the charge against the descendants is expressly limited to representatives of the heir so advanced. But in that statute representation is expressly defined ; and that by definition they only are representatives who takeper stirpes. Sections 13 and 1. If the language of the four sections imparted a charge of the child’s advancement to the descendants of a child, it would be to all descendants; contrary to the limitation in section 11.
    The principles of construction here insisted upon, have had very frequent recognition by this court. As to the value here of the construction given in Massachusetts, Favorite v. Booher, 18 Ohio St., 553; Paine v. Mason, 7 Ohio St., 198.
    The principle applied in Howk v. Minniok, 19 Ohio St., 462, 467, in regard to the amendment of a statute, applies with equal force here. The omission was an important change of language which, it must have been designed, should be accompanied by a corresponding change of meaning. Bloom v. Richards, 2 Ohio St., 287.
    
      Washington Hyde, for defendants in error.
    
      We are quite inclined to agree with counsel for plaintiff in error, that the descent, distribution and inheritance of estates, real and personal, in this state, are matters of statutory regulation. We did not suppose that this was an open question. Three Leading Cases on American Law of Real Property, page 407; Drake v. Rogers, 13 Ohio St., 28; Penn v. Cox, 16 Ohio, 32.
    It is said there was no gift of any real estate from George Parsons to William B. Parsons, in the conveyance to him of the 119 acres of land, because the benefit in the transaction was in every part of it burdened with the obligation for the payment of money and was not a gift of real es-state by way of advancement within the meaning of the statute. An advancement is defined in 8 Ohio, 355, quoting from Bouvier Law Die., 61, to be part of the estate advanced' by ancestor to heir in anticipation of what he would inherit. The true notion of an advancement is a giving by anticipation, the whole or a part of what it is supposed a child will be entitled to on the death of the parent or party making the advancement. Osgood v. Breed, 17 Mass., 358.
    Upon the question whether there was gift of anything from George Parsons to his son, William B. Parsons, in the transaction of deeding him the 119 acres of land, we invite the attention of the court in the first instance to the statute itself. By sections 10-13, of the act of 1853, and sections 4169, 4172, Revised Statutes, any estate, whether of real or personal property may be made the subject of an advancement. The form of executing the advancement, or the manner of proving it when made, are neither prescribed nor limited by the statute. In this respect our statute differs most materially from the statute of Massachusetts. All that is required is a consummated transfer of some estate of real or personal property, as advancement. In interpreting this statute the court must have a due regard to the subject matter to which it applies. Moore v. Given, 39 Ohio St., 661.
    We think the construction insisted on by counsel would produce just such results as this court in the above case has said should be avoided.
    Counsel for plaintiff in error have argued the case as though the deed must be such a one as the law denominates a voluntary conveyance. In this he has fallen into a great error, for it is not essential under our statutes that the deed be of such character, but the substantial nature of the trans-' action may always be inquired into. This seems' to have been the point involved in the decision of the case of Scott v. Scott, 1 Mass., 526. The question was whether this deed could be considered a deed made in consideration of love and affection only. Nevertheless, a deed may be made on such consideration. Seward v. Jackson, 8 Cowen, 406; Whitman v. Whitman, 10 Mass., 437; Bullard v. Bullard, 5 Pick., 527; Swihart v. Shaum, 24 Ohio St., 432; 2 Ohio St., 415; Stump v. Stump, 26 Ohio St., 169.
    Every advancement is a completed gift, pure and simple. The requirement that the donee be charged with the value of the gift when he comes to the inheritance, is a duty charged on him by reason of,‘and arising out of the nature of the gift, made so by the statute for the benefit of the other children of the intestate or their descendants who have received no advancement, or a lesser one than the others. This duty growing out of - the acceptance of the gift, ‘must not, and will not, be confounded with the contractional obligation founded on a valuable consideration and the agreement of the parties.
    Are the children of "William B. Parsons chargeable with the advancement made by his father to him as he would have been had he been living? Drake v. Rogers, 13 Ohio St., 37.
    It will be observed that the language of section 10, of the act of 1805, as of all subsequent acts, including the act of 1853, is, that the issue of a deceased child of the -intestate. take the share of their parents. It is stated by the editors of Leading Cases in American Law of Real Property, volume 3, page 412, that the fourth canon of descent of the common law is in force in all the United States. That canon is as follows: “The lineal descendants ad infinitum of any person deceased shall represent their ancestors, that is, shall stand in the same place as their ancestor himself. would have done, had he been living.” The ordinance of 1787, provided for inheritance per stirpes among children and their descendants.
    Our statutory rules of descent and distribution, are based on natural love and affection and have respect to nearness of kin.- Such is the language of this court, in Drake v. Rogers, 13 Ohio St., 36; Garland v. Harrison, 8 Leigh., 368.
    The common law of descents and distributions has been universally rejected in the United States. Each state has enacted a law for itself. The statutes of the various states have been formed more after the civil than the common law. Am. and Eng. Ency. of Law, volume 24, page 348.
    The statutes of Ohio regulating descent and distribution are no exception. Ewers v. Follin, 9 Ohio St., 327; Drake v. Rogers, 13 Ohio St., 35.
    
      We insist that section 7 of the act of 1853, must he read and construed in connection with all that precedes and follows it in that act. Wilbur v. Paine, 1 Ohio 255; Pancoost v. Ruffin, 1 Ohio 385; Hirn v. State, 1 Ohio St., 20; Jones v. Carr, 16 Ohio St., 428; State ex rel. v. County, 20 Ohio St., 424.
    It is obvious, that advancements are limited to such gifts as may be made as such by an intestate to his own children, or their descendants. Gifts to collateral kindred, though they may afterwards inherit, are not advancements under the statute. The authorities are substantially all one way, viz: in support of the construction of the statute as claimed by us. . The statute of Pennsylvania provides that issue of a deceased child or grandchild shall take by representation of their parents. Act of 1833, Brightly and Purdon’s Digest, pages 929, 930, section 14.
    Section 35, providing for advancements, is similar to section 10 of the act of 1853. There is no special provision in the Pennsylvania act charging issue with advancements to their parents. Yet it has been often held in that state that they are so chargeable, on the death of their parents before the intestate, under the statute of that state referred to. And more than that, that they are chargeable with debts due from their parents to the intestate. McConkey v. McConkey, 9 Watts., 352; Earnest v. Earnest, 5 Rawle, 213; Pearson's Appeal, 74 Pa. St., 121; Hughe's Appeal, 57 Pa. St., 179; Girard v. Wilson, 57 Pa. St., 182.
    Many, perhaps most of the states, make a difference between debts and advancements. It is enough for our present purpose, that the statutes of this state make advancements part of the intestate’s estate for the purpose of the division and distribution thereof. ' Destrahan v. Destrahan, 16 Martin (4 N. L.), 557; Calhoun v. Cosgrove, 33 Le. An., 1001; Succession of the Misses Morgan, 23 Le. An., 290.
    In Illinois, under the act of July 1, 1872, grandchildren were held chargeable with-an advancement to their father. But the reasoning of the court would have led to the same conclusion without the express provision of the act. Simpson v. Simpson, 114 Ill., 603; Am. & Eng. Ency. of Law, volume 1, pages 221, 222, cases cited in note page 222. Also' volume 24, Title Succession, pages 378, 379; Leading Cases in Am. Law of Real Property, volume 3, page 418, and eases cited; 3 Redfield on Wills, 428; Smith v. Smith, 59 Me., 214; Williams on Executors, page 1347; Brown v. Brown, 62 Ind., 295; Beebe v. Estabrook, 79 N. Y., 246; Proud v. Turner, 2 P. Wms., 560.
    We believe this last is the earliest reported ease under the English statute of distribution commonly known as 22 and 23 Car. II, case 10. It has been a recognized authority ever since its announcement, and is cited with approval by text writers such as Williams on Executors and Red-field on Wills.
    [The statute of descent and distribution of this state have from the beginning followed the civil law, rather than the common law. In one important particular, it has been expressly so held by a decision of this court. Clayton v. Drake, 17 Ohio St., 368.
   Shauck, J.

There is no inconsistency in the finding’ of the circuit court, that the conveyance from George Parsons to his son, was in part for a valuable consideration, and in part a gift by way of advancement. Firestone v. Firestone, 2 Ohio St., 415; Swihart et al. v. Shaum et al, 24 Ohio St., 432; The difference between the consideration paid and the value of the land conveyed, suggested that the transaction involved a gift. Of its probative effect, it is sufficient to say that this difference, in connection with other evidence offered, satisfied the circuit court that there was a gift by way of advancement.

In a learned and exhaustive argument, counsel for the plaintiffs in error contend that the circuit court erred in charging their share of the estate of their grandfather with a gift of this character made to their father. The cases cited well sustain the proposition that according to the long settled and consistent policy of this state, the course of descents is prescribed exclusively' by statute. But this is a rule of inheritance and not a rule of construction. It does not mean that in the application of the provisions of the statute, courts should be unmindful of the equality of inheritance which appears to be a leading object; nor that regard should not be had to all statutory provisions which relate to the subject matter.

The descent of the estate of George Parsons, in-view of his intestacy and the survivorship of some of his own children, and the children of his son William, who had died before him, is determined by the provisions of section 4166, Revised Statutes. This section is a re-enactment, without substantial change, of section seven, of the act of March 14, 1853, to regulate descents. It provides that the estates shall so descend, “that the legal .representatives of the deceased child’*' * * of the intestate, shall inherit equal parts of that portion of the estate to which such deceased child * * * would be entitled if such deceased child * * * were living.” Manifestly, this section introduces the principle of representation, for the benefit of those who stand in the position of the plaintiffs in error and who would otherwise be wholly excluded from the inheritance. The section was under consideration in Dutoit v. Doyle et al., 16 Ohio St. 400, where the principle of representation was recognized, and made the basis of the conclusion, that in eases of this character, grandchildren take per stirpes, and not per capita. To the representative character with which they are thus clearly invested, representative rights are appropriate; and full effect should be given to the provision which defines their inheritance, and limits it to ‘‘that portion of the estate to which such deceased child would be entitled if such deceased child were living.” The authorities cited by counsel for defendants in error, seem to sustain the conclusion for which he contends, and which is well stated in "Woerner’s Law of Administration, § 554: “A sound rule seems to be, that in all eases where grandchildren take per stirpes, or in right of their parents, they take subject to advancements to their parents, but not so when they take per capita, or in their own right. ” The general course of decisions is in accord with Dutoit v. Doyle et al., that inheritance by representation must be per stirpes, so that the rights of representatives may equal, but not exceed, those of their principal.

The provisions quoted from the statute of descents, are in pari materia with those of section 4169, etseq., relating to advancements. It is contended, upon the one hand, that the latter provisions support the conclusion drawn from the statute of descents, and, upon the other, that their terms forbid the charging of an advancement to the representatives of him to whom it was made. The provisions directly applicable are those of section 4169:

“If any estate, real or personal, has been given by any intestate in his lifetime as an advancement to any child or children of such intestate, or their descendants, it shall be considered and held to be a part of the estate of the intestate so far as it regards the division and distribution thereof, among his or her children, or their descendants, and shall be taken by such child or children, or their descendants, towards his or her share of the estate of the intestate. ’ ’

Against the soundness of the conclusion of the circuit court, it is urged that our statute of 1853 is dérived from that of Massachusetts, passed in 1835; that section 11, of the'statute of that state,which clearly provides that the representatives of an advanced heir shall be charged as though the advancement had been made directly to them, was omitted from our statute, and that this omission indicates the intention that a different rule should obtain here. But sections 6 and 11 of that statute, relate to the same subject matter, that is, a description of the persons against whom an advancement shall be charged. The section of our statute above quoted, is manifestly more comprehensive than either section of the Massachusetts statute, and its provisions clearly show an intention to combine in one section all the provisions relating to the precise subject. It may be that perspicuity has not followed condensation; but an analysis of the section shows that the advancement to which effect is • given, is an advancement to any child or children of the intestate, or their descendants; the effect is that it shall be charged against such child or children, or their descendants, when there is a division or distribution of the estate of the intestate, whether among his children or their descendants. The comprehensive terms of the section show that the legislature had in view the equality of inheritance which is made prominent in the general scope of the statutes, and that it intended, for the purpose of attaining it in cases of this character, that the “portion” of a deceased child should be charged with an advancement made to him, though the portion should be inherited by his representatives.

The judgment of the circuit court accords with this vieto, and it will be afirmed.

Spear, J., not sitting.  