
    (Delaware Co., O., Common Pleas Court.)
    June 28, 1897.
    B. F. THOMAS, ADMR. v. ZACHARIAH LETT, et al.
    M. J., after his marriage with one L. B., purchased certain real estate and afterwards died intestate and without issue or their descendants. Soon after his death his widow married one W. H. T. The widow remained in possession of said real estate until her death, she also dying intestate and without issue or their descendants: Held, that upon the death of L. B., former widow of M. J., her first husband, the whole of the estate passed to and vested in W. H. T., and that plaintiff, the brother and administrator of W. H. T., deceased, was entitled to an order of sale as prayed for.
    The term legal representatives, as used in sec. 4159, means the lineal descendants of those of different degrees of relationship mentioned, in such section. The same rule of construction should be applied to the term in sec. 4162, which provides that the estate shall pass and descend, one-half to the brothers and sisters of such intestate or their legal representatives. The legal representatives, within the meaning of the statute, are the lineal descendants of such brothers and sisters, and not the collateral, relatives, such as uncles or cousins.
   WICKHAM, J.

This cause comes into this court by appeal from the judgment of the probate court of this county. In the court below the plaintiff, as administrator of the estate of William H. Thomas, deceased, brought an action to sell certain real estate situated in the city of Delaware, this county, to pay the debts of William H. Thomas, deceased. There are numerous defendants, and among them certain defendants known in this case as the “Butcher Heirs.”

The Butcher heirs, filed their answer and cross petition in the case below, claiming to own the undivided one-half of the real estate described in plaintiff’s petition. Upon trial of the case in that court, the court found that they were owners of the undivided one-half of the real estate in question, and adjudged that upon the sale of the real estate, after the payment of costs and debts of William H. Thomas, deceased, that one half of the balance of the proceeds should be distributed to the said Butcher heirs. From that judgment the plaintiff appeals to this court.

There is no controversy as to the facts in the case, a brief statement of which is as follows:

Tn 1849, Moses Johnson married Lucretia Butcher. After his marriage, Moses Johnson acquired by purchase the real estate involved in this suit; he died in 1863, intestate and without issre or their descendants. Soon after the death of her husband, Lucretia Johnson inter-married with the plaintiff’s intestate, William H. Thomas. Lucretia Thomas, former widow of Moses Johnson, remained in possession of said real estate until her death, which occurred in 1891. She died intestate and without issue or their descendants. William H. Thomas, widower of Lucretia Thomas, died intestate in 1896. Lucretia Butcher had one brother, William Butcher,Jr., but no sisters, and at the time of her death she had neither brother nor sister or their descendants, William Butcher, Jr., having died at the age of fifteen or sixteen years, about the year 1850. Lucretia Butcher had an uncle, William Butcher, Sr., brother of her father, who first inter-married with Patsy----, sister of her mother, by whom he had three children. After the death of his wife Patsy, he- inter-married with Kachael, another sister of Lucretia’s mother, by whom he had children. These children of Patsy and Rachel, are the persons known in this case as the Butcher heirs.

The Butcher heirs base their claim upon the undivided one-half of the real estate in question, under sec. 4162, Rev. Stats., as the first cousins, and, therefore, the personal representatives within the statute of William Butcher, Jr., deceased, brother of Lucretia Thomas.

There is no question that upon the death of Moses Johnson, the real estate seized by him passed to and vested in his widow, Lucretia Johnson, and that upon the death of Lucretia Johnson, afterward Lucretia Thomas, intestate and without issue, one-half of the real estate would pass to and vest in the brothers and sisters of Lucretia Thomas, and one-half in the brothers and sisters of Moses Johnson, deceased, if there were brothers and sisters or their descendants of Moses Johnson and Lucretia. But,as is conceded by counsel of the parties, Moses Johnson never had a brother or sister. Lucretia, his widow, never had any sisters and no brothers, except William Butcher, Jr., who died about 1850, without issue or their descendants. It is conceded that one-half of the real estate that would have gone to the brothers and sisters of Moses Johnson, passed to and vested in William H. Thomas, upon the death of Lucretia, his wife. But the claim of the Butcher heirs is, that the remaining one-half vested in them on the death of Lucretia, by reason of the fact that they are the collateral relatives of William Butcher, her brother, and, therefore, his personal representatives within the meaning of sec. 4162.

The real estate then coming to Lucretia Johnson from her foimer husband, under the statute did not come to her as ancestral property. Birney v. Wilson, 11 Ohio St., 426; and it is held in Brower v. Hunt, 18 Ohio St., 312, that upon the death of the relict, intestate, of a former husband or wife seized of real estate acquired from such former husband or wife under the statute, that the real estate would descend to the heirs and nearest of kin of such relict under sec. 4159. And in Ellis v. Ellis, 3 C. C., 186, it appeared that one William McMullen, had died intestate, without issue, and without brothers or sisters or their legal representatives, seized in fee simple of certain tracts of land. Eliza J. McMullen died intestate and without issue, seized of the same real estate, leaving brothers and sisters. The plaintiffs in that case, her brothers and sisters, claimed to be the owners of all th'e real estate in controversy ; the defendants, the uncle and cousins of William McMullen, claimed one-half of the real estate under sec. 4162. It was there held that the whole of the estate which upon the death of William McMullen, passed to his widow, Eliza McMullen, upon the death of the latter, descended to and vested in her brothers and sisters, and the legal representatives of her brothers and sisters.

J. R. Lytle, Attorney for Plaintiff.

McElroy & Carpenter, Attorneys for the Butcher Heirs.

It is conceded by counsel for the Butcher heirs, that if Lucretia Thomas had never had a brother or sister, they would not be entitled to an interest in the real estate, but at her death it would all pass to and vest in her husband, William H. Ihomas, but that, as I have before stated, they inherited the undivided one half ol said real estate through William Butcher, Jr., brother of Lucretia. as his personal representatives within the meaning of sec. 4162.

The case then turns upon the construction of the statute and the term, legal'rep resentatives, as therein used

Sec. 4162 provides as follows: “When the relict of a deceased husband or wife shall die intestate and without issue, possessed of an estate or personal property which came to such intestate from a former deceased husband or wife by deed or gift, devise or bequest, or under the provisions of sec. 4159, 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 and 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”

Perhaps there is no term used in the language of the law that is more indefinite in its application than the term “legal representatives. ” It has been used to designate an administrator or executor, devisees and legatees, children, brothers, and sisters, and almost all degrees of relationship. To arrive at a proper construction of the term as it is used in sec. 4162, it will be necessary to consider this section in connection with sec. 4159, of which it is a supplementary act, and perhaps the other sections of the statutes relating to the descent and distribution of property.

In the first sub-division of sec. 1159, it is provided, that upon the death of the person seized of property, it shall descend to his children “and their legal representatives.” The second sub-division provides for the descent of the property if there are no children. It is evident, therefore, that the t.erm “legal representatives” in the first sub division, means the lineal descendants of the intestate’s children for the next subdivision provides, that if there are no children or their legal representatives, the estate shall pass to and be vested in the husband or wife relict of such intestate. In this sub-division also, the term legal representatives, certainly means the lineal descendants of the children. The third sub division provides for the disposition of the property if there are no children or relict •, to the brothers and sisters of the intestate of the whole blood and their «legal representatives, and so on throughout all of the sub division of this section.

I think there can be no question that the’ term legal representatives, as used in sec, 4159, mean the lineal descendants of those’ of different degrees of relationship mentioned in such section. And I think the same rule of construction should be applied to the term in sec. 4162, and when that section says that the estate shall pass and. descend one-half to the brothers and sisters of such iptestate or their legal representatives, the legal representatives, within the meaning of the statute, are the lineal descendants of such brothers and sisters and not the collateral relatives, such as uncles- or cousins.

Sec. 4162being a special provision applicable to, a particular class of persons, and the Butcher heirs not being of the class provided for in that section, it follows that upon the death of Lucretia Thomas, the wnole of tne real estate passed to and vested in William H. Thomas, now deceased, and that the Butcher heirs are entitled to no interest therein, and that the plaintiff, as administrator of William H. Thomas, is entitled to an order of sale as prayed in his petition, as against all of the defendants, and a judgment may be entered accordingly.  