
    Martin et al. v. Martin, Admr.
    
      Personal properly — Law of inheritance — Intestate with neither wife nor child — Rule as to distribution.
    
    The personal property [of an intestate who leaves neither wife nor child, passes to such of his brothers and sisters as survive him, and to the legal representatives of those who died before him, and children of a pre-deceased brother take in a representative character and subject to the indebtedness of their principal to the intestate.
    (Decided April 27, 1897.)
    Error to the Circuit Court of Brown county.
    The plaintiffs in error brought suit in the court of common pleas alleging, in substance, that the ' defendant is the duly qualified administrator of the estate of' Ezekiel Martin, who had died intestate, and leaving neither wife nor child surviving him; that they are the children of Alexander Martin, who was a brother of Ezekiel, and who had died before Ezekiel; that the estate of said Ezekiel upon his death clecended to his surviving brothers and sisters and the representatives of such of his brothers and sisters as had died before him; that as the representatives of Alexander they, were each entitled to a fourteenth part of the estate of Ezekiel after the payment of his debts, and that the amount due each of them, upon distribution, as the same had been found by the probate court was $467.77, for which they prayed judgment.
    The administrator answered alleging that Alexander in his lifetime became indebted to Ezekiel upon a promissory note less than fifteen years past due, the sum of $1,565.00, no part of which had ever been paid, that Alexander was insolvent, and that said note is a part of the assets of the estate of Ezekiel and praying that its amount with interest be charged against the distributive share of the plaintiffs.
    In the common pleas court a demurrer to the answer was sustained.
    In the circuit court the judgment of the common pleas was reversed.
    
      IJ. C. Keller and Loudon & Waters for olaintiffs in error.
    The property in question in this case comes from Ezekiel Martin, the intestate, by descent. Descent at common law “is the title whereby a man,on the 'death of his ancestor, acquires his estate by right of representation as hisheiratlaw.” 2 Blackstone Comm.,201. 4 Kent Comm., 374. Descent “is the transmission, of an estate in lands by operation of law, upon the decease of a proprietor, without any disposition thereof having been made by him.” 6 Am. Cyclopedia 38. In the technical sense of the word, only lands descend. Personal estate goes to the executor or administrator. One who takes land by descent is liable for the debts of the person from whom it descends to the value of the property descended. 4 Kent Comm., 420. The definition of “descent” shows that the title vests in the heir at the death of the ancestor.
    
      Subject to administration on the personal estate of an intestate, the right of the distributee vests at the death of the intestate. Armstrong v. Grandin, 39 Ohio St., 368; Conger, et al. v. Baker's Admr. and Heirs, 11 Ohio St., 1.
    The Revised Statutes of Ohio, title 4, chapter 2, section 4158, regulates the descent of ancestral real estate, and section 4159, that of non-ancestral real estate. In the present' case, whether the real estate of Ezekiel Martin was ancestral or nonancestral is immaterial. His brothers and sisters are all of the whole blood as well as of the blood of the ancestor. By virtue of section 4163, Revised Statutes of Ohio, personal property is to be distributed in the manner prescribed in section 4159, as to nonancestral real property.
    We maintain that the plaintiffs take directly from the intestate, Ezekiel Martin, and not from their father, Alexander Martin. They, the plaintiffs, are the persons in whom the law cast the -descent of the one-seventh part of their Uncle’s (Ezekiel’s) land, and in whom at his, death vested the right of distribution to one-seventh of his personal estate. The title passed from him to them, by his death, encumbered only by his debts. They are his heirs and distributees by force of the statutes ; and they, although nieces, took from their uncle the same title that his brothers and sisters took. An inheritance can not come from one who was never owner of it. The estate of Alexander Martin, father of the plaintiffs in error, had no interest in the property of. Ezekiel, the intestate. Barnum v. Barnwn, 119 Mo.,63 (24 S. W. Rep. 780). Gopenhaven v. Gopenhaven, 78Mo., 58.108 Mass., 382.
    That plaintiffs inherited directly from their uncle, the intestate, and not from or through their father, see Kendall v. Mendell, et al., 67 Maryland, 444 ; Esterly’s Appeal, 109 Penn., 222; Woerner on Administration, section 71, p. 149; Ilganfritz Appeal, 5 Watts. (Pa.), 25; Carson v. Carson, exr., 1 Metcalf (Ky.,) 300.
    The words “legal representatives” as used in our statute of Descent and Distribution, are descriptive of a class of persons who take directly from the intestate. The words of the statute governing this case are, uto their legal regyi'esentativesBy the very terms of the statute the property of the intestate, • Ezekiel Martin, passed to two classes of persons ; the first of which was composed of his surviving brothers and sisters; and the’second'of which was composed of the legal representatives' — that is to say, the children — of his brothers who had predeceased him. But both these classes take directly from the intestate.
    Section 4174 has been thrice amended, and in its various forms has received frequent judicial construction. 8 Ohio 289; 11 Ohio St., 131; 19Ohio St., 22; 4 Ohio St., 354.
    In determining the degrees of consanguinity we follow the civil law. Clayton v. Drake, 17 Ohio St. 367.
    In connection with the proposition hereinbefore stated, and as showing the rule of the civil law in eases like the one we are considering, we refer to Gaius Institutes. . (Tomkins & Lemon Ed., 1869.) Com. 2, Sec. 156; Com. 3, Sec. 7; Com. 3, Sec. 17, note; Com. 3, Sec. 32, note; JustiniansInstitutes; Liber 2, Title 19, Secs. 1 and 2; Liber 3, Title 1, Sec. 6; Liber 3, Title 2, Secs. 2, 3 and 4. Also 118 Novella; 127 Novella.
    
      
      Virio .Slocme and Bambach <& Sou, for defendant in error.
    .The question is: Can the indebtedness of Alexander Martin, the father of plaintiffs, to the intestate, under the facts of this case, be charged against the distributive share of the plaintiffs in Ezekia Martin’s, estate? We contend that it should be so charged. The question rests ultimately on the construction, to be given to Chap. 2, Title 4, Part 2 of the Revised Statutes. Sections 4158 et seq„
    The first law in this state regulating the distribution of persona] estates was the act adopted by the Governor and Judges under the Ordinance of 1787, from the Pennsylvania Statute on June 16, 1795, (1 Chase Chap. 50, page 164, sec. 4) The next Act provided that such residue shall be distributed agreeably to the Act entitled, “An Act regulating’ the course of descent and distribution of personal estates, without otherwise designating such act. 1 Chase, Chap. 83, Page 498. The next Act was passed by the Third General Assembly Eeb. 22, 1805. 1 Chase, Chap. 109, page 515.
    The law remained substantially as in this act so far as non-aneestral property, and the 10th and 15th sections of said Act are concerned, until the passage of the Act of March 14, 1853, (3 Curw. chap. 1305, page 2270). For the various Acts intervening, if the Court desires to verify this statement see 2 Chase, chap. 329, page 854; 2 Chase, 356, page 906; 2 Chase, chap. 590, page 1313; 3 Chase, chap. 843, page 1789; (3 Curw. chap. 1305, page 2270.) In this last Act the provisions of sections 10 and 15 df the Act of February 22, 1805, which had been retained in each subsequent Act, were omitted and in their place were enacted sections 5, 6, 7, 8, and 9, (3 Curw. page 2272), which are now sections 4163 to 4168 inch of the Revised Statutes. Ewers v. Fctllin (9 Ohio St., 327).
    Now, what are the legal rights, what, in view of this legislation is the proper legal status of “a legal representative?”
    As early as the territorial Act, the inheritance is east upon “the next kindred of the intestate, who are in equal degree, and those who legally represent them,” i. e. the next kindred in equal degree.- — The Act of February 22, 1805, (sec. 10) defines explicitly how the estate shall descend where all the heirs are in an equal degree of consanguinity, a,nd where some are further removed; and, probably, to remove all doubt as to the meaning’ of the latin phrases per cepita and per stirpes, this Act defines the former by adding “that is to say by persons, ” and the latter “that is to say, the share of their deceased parents.”
    Descents, as regards pedigree or consanguinity, are either immediate or mediate,
    Where the heir takes per capita, or, as the first statute defined it, “by persons,” by designation or nomination the descent is immediate. When the heir takes per stirpes, or by right of representation, the descent is mediate. In the former case the heir takes direct from the intestate; in the latter he takes mediately through the stirpes. Levi v. Mc-Cartee, 6 Pet., 102; Collingwood v. Pace (1 Vent. 413).
    As sustaining our view we cite: Pa/rsons v. Parsons, 52 Ohio St., 470; Dutoit v. Doyle, 16 Ohio St., 406 ; Levi v. Me Cartee, 6 Pet., 102; Ernest v. Ernest, 5 Rawle, 213; Me donkey v. Me Coñkey, 9 Watts, 352 Gi/ra/rdv. Wilson, 57 Pa. St., 182; Hughes ’Appeal, ib 
      179; Person’s Appeal, 74 Pa. St., 121; Easterly’s Appeal, 109 Pa. St., 222; Smith v. Smith, 59 Me. 214 ; Quarlesv. Quarles, 4 Mass. 680; Proctor v.Weiohall, 17 Mass.,81; Hancock v. Hubbard, 19Pick. 167; Dear-born v. Prestori, 7 Allen 192; Simpson v. Simpson, 114 111. 603; Brown v. Taylor, 62 Ind. 295; Destraban v. Destrahan, 4 Mart. N. S. 557; Calhoun v. Cross-grave, 33 La. An. 1001; Denise v. Denise, 37 N. J. Eq. 163; Smith v. Kearney, 2 Barb. Cb. 533 ; Wilson v. Kelly, 16 S. C. 216; Woerner’s Am. Law of Adm. sections 71, 435, 554.
   By the Court:

By tbe terms of section 4163, Revised Statutes, the personal property of an intestate is tobe distributed in the manner prescribed in section 4159, which relates to nonancestral real estate. The third paragraph of the section lastly named governs the case. It provides: “If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives. ’ ’ The plaintiffs in error, not being of the next to kin to the intestate, are entitled to share in the estate only by favor of the last clause of the paragraph, which admits them as “legal representatives” of their deceased father, Alexander, who, if he had survived, would have been of the next of kin. It is admitted that if Alexander had survived the intestate, and had brought suit for the distributive share now demanded by his representatives, the answer would have been good. Prom the representative character in which the.plaintiffs, are admitted to to participate with their uncles and aunts it results that they participate subject to the burdens which the law would have imposed upon their principal. Dutoit v. Doyle, 16 Ohio St., 400; Parsons v. Parsons, 52 Ohio St., 470; Hughes’ Appeal, 57 Pa. St., 179. Woerners’ Admr. section 554.

The conclusion reached in Parsons v. Parsons must be regarded as justifying the judgment of the circuit court in this case, unless the representatives of the principal who owed a debt to the intestate occupy a more favorable position than those of one who has received an advancement from him.

Judgment affirmed.  