
    Tilden v. Barker.
    Where a woman, having no children by her surviving husband, died, leaving issue by a former marriage and an estate which did not come to her from her surviving husband or his ancestors: Held, that under Section 17 of the Act of March 14, 1853 (S. & C., 504), as amended March 1,1869, (66 Ohio E., 21; Rev. Stats. § 4176), the surviving hus- • hand is not entitled to curtesy in her estate, notwithstanding she' had devised the same to her grandchildren.
    Error to the District Court of Portage County.
    Barker brought suit in the common pleas of Portage county against the plaintiffs in error to recover possession of certain real estate which was owned by his wife at the time of her death; and which he claimed by the curtesy. The case was tried to a jury and resulted in verdict and judgment in his favor.
    A demurrer to the petition had been overruled and exception noted. Thus the material facts are admitted on the record and are substantially these : In 1878 Tirza Hopkins, a widow, married Barker, and in 1879 died seized of the land in controversy, which had not come to her from Barker or his ancestors. She left only. one. child who was a son by a former marriage, and who had four children. She devised $300 to her son and the real estate to two of her grandchildren.
    On error to the district court the judgment was affirmed. The object of the present proceeding is to reverse the judgment of affirmance..
    
      JE. P. Hatfield, for plaintiff in error.
    What is title by the:curtesy? Our statutes do not define it. Our courts have recognized it as of .common law origin, and described its essential parts only by incidental recognition of the common law definition. Recourse must be had to. the common law. Marriage, seizin, issue, death of wife, gave the right to the husband. As soon as three of these essentials existed, i. e., marriage, seizin, and issue, the husband “ began to have a permanent interest in the lands,” 2 Black, 127, his right became a vested' one, and whatever right he had after her death, was, in the language of the supreme court in Watlcins v. Thornton, 11 Ohio St., 372, “a mere continuation of the right possessed during coverture.” The 14th section of the statute of.descents of 1853 does not modify or affect the rights or interest of the husband during the life of the wife; it is only at her death, when in fact he becomes a “ surviving husband,” that he can have curtesy without issue. Up to the death of the wife he gets no benefit, and takes no rights from that act. At her death, if there be no issue, his rights first spring into life. Denny v. MoQdbe, 35 Ohio St., 576. Up to the death of the wife, Barker had no vested interest in this land; he could not have curtesy by common law, for lack of issue; he could not have it by statute, for he was not a “ surviving husband.” It was then at the death of Tirza Barker that the interest of both the husband and son, whatever they are, first accrued.
    Had there been no will, it is conceded on all hands that the defendant would not have been entitled to curtesy. His claim rests entirely upon the assumption that the act of March 14,1853, deprived the wife of the power to dispose. of the property by will as against the rights of her husband. This statute was an act regulating descents; it was not intended to interfere with or modify the law regulating the disposition of property by conveyance or devise. The 17th section, so far as it gave curtesy without' issue, was in derogation, of common law, and must be strictly construed. It was evidently designed to apply only in cases of intestacy, and not to limit the power of the wife to convey or devise her estate. If the estate did not vest in the husband during the life of the wife, it follows that the wife during her life still retained in full her old power of disposition.
    But concede that the act in question limits the wife’s power of devise, what follows ? Upon the death of Tirza Barker the premises descended to and vested in the son and heir, unless taken from him by the will. The will does not say that he shall not have the property, but simply that his children shall have it. His failure to take is simply the result of their taking. It is taken.from him not by express words of disability applicable to. him, but as a necessary sequence of the fact that it is given to some one else. If, then, the devise for any reason fails, it leaves the property just where the law left it!, i. e., in the heir.
    The following from Jarman’s rules .are in point:.
    Rule 5. “ The heir is not to be disinherited without an express devise or necessary implication.” * * *
    Rule 6. “ That merely negative words are not sufficient to exclude the heir, or next of kin. There must be an actual gift to some other definite object.”
    It is true that this will devises the entire interest in the premises in question, but if it fail as to a part, then as to such part it fails to make “ an. actual gift to some other object;” and to the extent that it thus fails, it fails to disinherit the heir.
    The primary object of a will is to vest - property in the devisee, and the primary rule of construction is to carry out the intention of the testator. . A will which fails to carry the property devised to the party for whom it was intended, fails to carry out the intention of the testator; it is not his will. The devise must be regarded as lapsed, and the property remain in the heir. Otherwise, we are driven to the absurd conclusion that a will void for all the purposes for which it was intended is nevertheless good as against the heir, and may- be enforced in favor of an utter stranger.
    Curtesy was given by the common law because the husband, being chargeable with the maintenance of the issue, should have the estate; the act of 1853 giving curtesy without issue to “ surviving husbands,” is in derogation of common law, and must be strictly construed; it does not, we think, interfere with the wife’s jus disponendi; but if it does, then' the act of 1869, being a partial return to common law, intended to prevent the estate of the wife from being taken from her children and handed over tó a stranger under no obligation to provide for them, should be liberally' construed to carry out its design in favor of the heir, whose title in any event is better than that of the plaintiff below.
    The true intent of the • proviso is this, that where property came from a former husband, and there is issue by him, or legal representatives of such issue, the surviving husband can not have curtesy except where he has issue by the intestate, and then only in the interest of such issue of his.
    Defendant had no interest in. the wife’s estate — no initiate curtesy which could become consummate upon her death. He cannot take as surviving'husband, for the reason that the estate did not come from him, and the deceased had issue by a former husband, and had no issue by him.
    The defendant must derive curtesy by law, if at all;- he • cannot take curtesy by will. -
    
      Day $ Conant, for defendant in error.
    The question in the case' depends upon the construction of the proviso, or exception, appended to Section 17 (S. & C., 504), of the statute of- descents, passed March 1,1869. 66 Ohio Laws, 21; Rev. Stat., § 4176.
    Statutes made in derogation of the common law are to be construed strictly. The general policy of the legislation of- this state in. regard to the curtesy, is, to enlarge rather than to restrict the right, for it was enacted in 1853, that “ surviving husbands ” shall be -entitled to the curtesy in the • estate of their deceased wives “ whether there be issue born during coverture or not.”
    But; in derogation of both the common law and the general statute, in 1869, the proviso in question was enacted. The proviso, then, cannot be enlarged beyond the strict meaning and legal effect of the-words.used therein.
    Accordingly, it must be noted, in the first place, that the surviving husband is not entirely-debarred from the curtesy iii the estate of his deceased wife, even though she leave issue by a former marriage; for the exemption of the proviso extends only to “ the interest of such issue or the legal representatives of such issue in her estate.” Therefore, if a deceased wife have a ■ child by a former marriage, and a child by the surviving ■ husband, he may have the right by curtesy in the moiety of her estate falling to his own child; for the proviso only excludes him from the “ interest ” of the issue by the former marriage. It, therefore, clearly follows, that the curtesy of ' the surviving husband • is not excluded from- any estate of the deceased wife in which the issue of a former marriage has no interest.
    Again, if such issue has'no interest in the estate in question, his “ legal representatives ” cannot; for a legal representative is ohe — as the phrase is used in the statute of' descents — who takes an estate by descent, or inheritance,' from his ancestor. If, therefore, the estate of the deceased wife is one in which the issue' of her former marriage has1 no interest, his children can have no interest therein as his “legal representativesand, having no interest as-'such legal representatives, they are not ■ protected by the exception to the general rule in- regard to the curtesy: '
    Moreover, in the present case, the “issue'by á former marriage ” is living. ■ There are, then, no “ legal representatives of such issue” in the case; for nemo est’hceres vivero-' tis, and the phrase “legal representative,” as used in the statute of descents, is synonymous with - that of “ heir at law.” 2 Black, *201. Therefore, the “legal representative ” clause of the proviso may be laid out of the case.
    The record shows that the deceased wife died seized of the estate in question, and that she • bequeathed the only issue of the former marriage a specific sum of money,-which" has been fully paid. Such legacy, then, gives him no interest in the land in controversy. That was devised to other “ parties. It is true these' parties are children of the deceased ■' wife’s issue by a former marriage. But they take the land by purchase, and not by inheritance. Therefore, they never' can be, quoad this land, the “ legal' representatives ” of the • issue of the former marriage in the estate of the deceased wife.
    Since, then, the issue by the former marriage has no “ interest ” in the land, and his children have not, and never can have, any such interest as the “ legal representatives” of such issue, the surviving husband, upon a fair— not to say strict — construction of the language of the proviso, does not fall within the exception to the general rule of the statute created by the proviso.
    It is, however, claimed that if the curtesy prevails, then the devisees of the land did not take the whole estate therein under the will, and therefore there must be some interest left to go to the issue of the former marriage. This claim rests on the assumption that the curtesy prevails ; for, if it does not, there is no pretense that the issue takes any interest in the real estate of the deceased wife.
    If, then, the issue has any interest at all, it must be in the curtesy of the surviving husband, and not in the estate of the deceased wife, and so does not fall within the proviso; or else we fall into the absurdity of a case where each party, by the same token, both gains and loses the lawsuit.
    But the plain'answer to the claim is, that the deceased wife devised all — whieh includes. every part — of her real estate to parties other than the issue of her former marriage. No interest therein, then, was left to be inherited by such issue.
    All speculating about the inchoate rights of the issue by the former marriage, or of the surviving husband, in the land before the death of the wife, is futile; for it is apparent from the language of the section under consideration, that it contemplates the rights of each only as they are fixed at her death.
    Moreover, the issue had no vested interest in the land whatever. She could dispose of it absolutely by deed or devise.
    Whatever may have been the rights of the husband during the joint lives of himself and wife, his estate by the curtesy under Section 17, was at least consummate at tbe death of his wife. 2 Black, *126. At the same moment, then, both the curtesy and the devise took effect. Therefore, when the will took effect, the estate of the deceased wife eo instanti was subject to the curtesy given by the statute to “surviving husbands.” That, though created by law out of hex estate, can not be defeated by the issue, for the devise debarred him of all interest in the real estate of the deceased wife; nor can it be defeated by the devisees, for, as to this estate, they are not the “ legal representatives” of such issue, and so are not included in the proviso.
    The devisees took by purchase; but the proviso only shields the inheritance, and not those who take by purchase, from the deceased wife.
    It comes to this, therefore, at last, that the issue by a former marriage could, iu no way, have an interest in the real estate; and, if no interest, then the case does not fall within the exemption of the proviso of 1869, and stands upon the general statute of 1853.
   Martin, J.

The question raised by the record is, Is Barker entitled to the estate by the curtesy? The solution of the question requires the construction of the 17th section of the statute of descents as amended March' 1, 1869 (66 Ohio L. 21; Rev. St., § 4176) which reads:

“ Section 17. Nothing in this act shall be so construed as to affect the right which any person may have to any estate by the curtesy or in' dower, in any estate of any deceased person; and surviving husbands, whether there be' issue born during the coverture or not, shall be entitled to the estate of their deceased wives by the curtesy, provided, however, that if any deceased wife shall leave issue or legal representative of such issue by a former marriage, her surviving husband shall not be entitled to an estate by the curtesy in the interest of such issue or the legal representa fives of such issue in her estate, unless the estate came to the deceased wife by deed of gift from the surviving husband, or by devise or deed of gift from his ancestors.”

The chief contention is as to the meaning of the words “ the interests of such issue ” found in the proviso. It is claimed that they mean actual or vested interests, and that because the issue took no interest in the real estate curtesy is not excluded. The section provides curtesy for surviving husbands only; and is found in the act regulating descents. The pirrase in question, it seems to us, refers to such interests as the issue would have taken if the mother had died intestate. It is merely descriptive of the extent to which curtesy is excluded in cases falling within the proviso.

It is admitted that without a will the statute excludes him. The will in letter and spirit excludes him. And we cannot assent to the claim that he becomes entitled by the accidental circumstance of a devise to third persons.

Again, the proviso lifts from tbe general grant all cases where there are children by a former husband. Curtesy in the interests of such children is expressly excluded. But the exclusion goes no further. If there are children by the last marriage also, it attaches to their interests, thus partially returning to the theory of the common law which grounds the right on the legal duty of the father to support his children. Thus the .right is restricted and conditional upon the. fact of there being surviving children of tbe last marriage.

In tbe view we have taken, the question as to whether curtesy is limited to cases of the intestacy of the wife, need not be considered. It follows that Barker is nqt entitled to curtesy.

Judgments reversed.  