
    LAW OF DESCENT AND DISTRIBUTION.
    [Circuit Court of Wood County.]
    Robert Digby v. Willis J. Digby et al.
    Decided, April 23, 1903.
    
      Change in Character of Property — Prevents Operation of Section 4162 — Rights Under this Statute to be Determined, How — Oil Production Not Controlled by.
    
    1. A surviving husband or wife acquiring an estate from a deceased husband or wife does not take it as a trustee, but with an absolute right to dispose of it, and to change its character so as to prevent its descent being controlled by Section 4162.
    2. In construing Section 4162, the rights of the parties involved are to be determined by the legal title and their legal status, and not upon equitable principles.
    3. Money received by a widow for the sale of oil from land derived by her from her deceased husband, is not identical with the land, and upon distribution after her death is not to be controlled by the provisions of Section 4162.
    Parker, J. (orally) ; Haynes, J., and Hull, J., concur. '
    This action is brought to obtain a reversal of the judgment of the court of common pleas of this county. The action was brought in the court below by the defendant in error, Willis 'J. Digby, as administrator of the estate of Sarah A. Digby, deceased, asking the direction of the court in making distribution of certain property in his hands as such administrator, which property came to decedent, as is averred in the answer, in the way of moneys received from the sale of oil from lands owned by her husband John E. Digby, and which land came to her by devise from him.
   John E. Digby died in the year 1891 without issue, but leaving as his relict Sarah A. Digby. Sarah A. Digby died intestate in the year 1901, without issue, possessed of real estate which had been thus devised to her, and also, as is stated, of a large amount of personal property, or money derived from the sale of oil, crude petroleum extracted from these lands. A controversy having arisen between different sets of heirs as to how this fund arising from the sale of the oil should be distributed, the administrator has brought this action to obtain the advice and direction of the court upon it.

It is claimed by the heirs of Sarah A. Digby that the whole of this fund, together with the lands and other property coming from her husband, should go to them. ' It is claimed by the heirs of John E. Digby that at least one-half of this fund should go to them, under and by virtue of the provisions of Section 4162 of the Revised Statutes. The heirs of John E. Digby have filed an answer setting forth their relationships; setting forth that this fund was derived in the manner I have stated and praying for distribution to them of what they claim is their share. To that answer a general demurrer was filed and sustained, and judgment was entered against them, and therefore the heirs of John E. Digby prosecute error in this court to reverse that judgment. As I have stated, they claim under Section 4162, Revised Statutes, a part of the chapter of the Revised Statutes upon the subject of descent and distribution, which reads as follows:

“Where the relict of a deceased husband or wife shall die intestate and without issue, possessed of any real estate or personal property which came to such intestate from any former deceased husband or wife by deed or gift, devise or bequest, or under the provisions of section forty-one hundred and fifty-' nine, then such estate, real and personal, shall pass to and vest in the children of said deceased husband or wife, or the legal representatives of such children. If there are no children or their legal representatives living, then such estate, real or personal, shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife from which such personal or real estate came, or their personal representatives. ’ ’

It is claimed by tbe plaintiff in error that with respect to this property they come fully within the provisions of this statute. There has been no trouble about the division of the land; no trouble, I believe, about the distribution of certain personal property that the deceased, John E. Digby, had devised to his wife, and which remained in her possession as personal property at the 'time of her decease; but here it will be observed is property which if it can be said to have come from John E. Digby has changed its form and character. The land came to Sarah A. Digby by devise from her husband; she operated oil wells upon that land; whether this money represents royalty or product coming to her as an operator we are not advised, and we think it makes no difference; whether the wells were opened and in operation at the time of the decease of her husband or whether they were afterwards drilled by her or in pursuance of authority from her, in the view we take of the case, makes no difference. She acquired the real estate from her husband; from this land she extracted the oil and sold it and converted it into money, and of this fund she died possessed.

Now it is urged on the part of the plaintiff in error that this fund should be treated as land — a part of the land that came to her from her husband. Of course, it can not be said it is personal property that came to her from her husband by devise or bequest, because at the time of his death he was not possessed of any such property as personal property. If he may be said to have been possessed of it, it was a part of the land; it was then in the land; but it is said that the changing o'f its character by her from real estate into personal estate, should not change the course of its descent; that it should be regarded for the purposes of this case, and for the purpose of fixing the line or course of descent, as a part of the land which she derived from Oher husband; its character-as land should not be lost by its conversion into money; and we are cited to certain nisi prius decisions which seem to give some support to this view. Some of them are at least based upon the conclusion that the property there in question was not changed in character; that substantially the identical thing left by the husband or wife -as the case may have been, was preserved intact by the surviving husband or wife until the decease of the latter.

It will be observed that this statute does not provide that the increase or profits of either real or personal property thus coming to the relict shall be impressed with the same character or shall descend in the way there pointed out. We look upon the statute as providing that the very thing left by the deceased husband or wife to the relict must be preserved in form; that its character or substance shall not be changed, in order that the statute may operate upon it; and we regard the statute as analogous to Section 4158 of the Revised Statutes in that respect, as being properly subject to the same construction in cases of this character as has been put upon that section.

Section 4158 provides for the descent of ancestral property. Now it is well known that where one takes property as ancestral property and does not change the title, but dies seized of the same, in the same form and by the same title he inherited, it will descend under this section as ancestral property; but, should change in its form or title occur, it would not descend under this section, but under Section 4159 as non-ancestral property. One taking an ancestral estate under Section 4158 does not take it as a trustee; he does not take it so that he is bound to preserve its character as an ancestral estate in order that it may descend as provided for. the descent of ancestral property; but he takes it absolutely, with the full and unqualified right of disposition or jus disponendi; and it has been held that where two persons take their estates in this way from the same ancestor, and then make an exchange of their property, the property they thus acqure in exchange they dp not hold as ancestral property, but it becomes non-ancestral property. It is so held in the case of Brower v. Hunt, in 18 Ohio St., page 311, the syllabus of which reads as follows:

“The title to real estate which must have come to an intestate by devise, or deed of gift from an ancestor, to constitute ancestral property, is the title under which the intestate immediately held.
“Where specific tracts of land had been allotted to co-devisees in pursuance of directions in the will of their ancestor, and, afterward, one conveyed his tract to a co-devisee for a moneyed consideration as expressed in the deed, but in fact for a like conveyance, by the latter, of the tract he-had received in the partition — Held: That the title of neither was derived directly by devise from the ancestor, and that, for the purposes of descent, each was to be regarded as a purchaser.”

They might, for the very purpose of changing the course of descent, change it from ancestral to non-ancestral property and they would not be guilty of any legal wrong in so doing. A person receiving ancestral property in that way, would have a perfect right to do that, because he does not receive it. as a trustee. He may sell it or convey it away, or so manipulate his affairs as to convey it, and have it reconveyed to himself, henceforth holding it as non-ancestral property. Now it will be observed that these sections both appear in this chapter and that they read very much alike. Section 4158 reads:

“When a person dies intestate', having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, devise or deed of gift from an ancestor, such estate shall descend and pass,” etc.

Section 4162 reads:

“When the relict of the deceased husband or wife shall die intestate and without issue, possessed of any real estate or personal property which came to such intestate from any former deceased husband or wife by deed of gift, devise or bequest, or under the provision of section forty-one hundred and fifty-nine, then such estate, real and personal, shall pass to and vest, ’ ’ etc.

We think what I have stated with respect to Section 4158 is true of Section 4162, that the person acquiring the estate from a deceased husband or wife, does not take it impressed with a trust — does not take it as a trustee, but takes it with an absolute right to dispose of it, and a right to change the character of the property so as to prevent the operation of this statute upon it. That he may rightfully change it so that it may not be said that the title of which the person died seized was derived immediately from a deceased husband or wife, and so that it may not be said that the property of which the person died possessed was the personal property or real estate which came from the deceased husband or wife, as the case may be.

Now that being our view of the statute, and it being clear that this fund is not the identical property, whether real estate ■or personal property, coming from John E. Digby, but is issue therefrom, or something derived from changing the character ■of that property, this statute does not operate upon the fund.

In line with Brower v. Hunt, supra, and the views I have here expressed with respect to Section 4158, is the ease of Patterson v. Lampson, 45 Ohio St., page 77. There was a case in which a father purchased a certain tract of land for his daughter, a house and lot, quite valuable; he furnished all the funds and made a gift of that property to his daughter, but instead of having the property conveyed to himself and then conveying it to his daughter as a gift so she would have received it under this statute as a deed of gift from an ancestor, he caused the person from whom he purchased it to convey it directly to her; she died thereafter intestate and without issue, leaving her husband surviving her. It was urged that the land should be treated as ancestral property, as property which came from her father by deed of gift; that equity would look through the form and get at the substance of the transaction; and the Circuit Court of the Cleveland Circuit so held, Judge Haynes of this bench delivering the opinion of the circuit court; but the Supreme Court reversed that decision and held as follows:

“1. Under the statutes of descent and distribution, the course of descent of real estate is to be controlled by the legal title.
“2. Where the intestate’s title to real estate is free from -controversy, in determining its course of descent and whether it is ancestral or non-ancestral property, the statutes of descent and distribution are not to be construed upon equitable principles, but by the rules of law.
“3. In determining, in such case, whether an instrument for the conveyance of land is a deed of gift or a deed of purchase, its recitals of the payment and receipt of the consideration are material; and a recital in such deed that the conveyance by the named grantor to the grantee is made in consideration of a specified sum of money received by such grantor from the grantee, so far concerns the operation and effect of the deed as that it is not competent to show, by parol proof, that such instrument is, in fact, a deed of gift from a person not named in it, and that the named consideration was in fact paid by him.

Boverstock & Bonehay, for plaintiff.

Baldwin & Harrington, for defendants.

“4. A father desiring to make his daughter a wedding gift, bargained for a tract of land, paid the agreed purchase price in money, and caused the vendor to convey it to the daughter just prior to her marriage. She died thereafter intestate. * * * Held: The title to the land did not come to her ‘by deed of gift from an ancestor,’ within the meaning of Section 4158, Revised Statutes, * * * which provides that if the estate came not by devise, descent or deed of gift, it shall, if there be no children or their legal representatives, descend and pass to the husband or wife relict of the intestate. ’ ’

That has been followed by the Supreme Court in a number of cases since then, one decided last winter.

We think and hold that what is true of Section 4158 is true as well of Section 4162, viz., that such questions thereunder are not considered or determined upon equitable principles; that the legal title and legal status determine the rights of the parties when it comes to the matter of descent of property, and so holding, we affirm the judgment of the court of common pleas.  