
    Armstrong v. Grandin.
    1. Subject to administration on tbe personal estate of an intestate, the right of the distributee vests at the death of the intestate.
    
      2. Upon the death of such distributee before distribution, the right passes to his or her personal representative.
    3. An order by a probate court that certain funds remaining in the hands of an administratrix “ be distributed and paid over to the next of kin and representatives of said intestate according to the provisions of the statute in that behalf in force at the time of his decease,” where the statute referred to gives the whole fund to the widow of the intestate, cannot be construed or held to bar the widow of her right under the statute, although in the same order the heirs and legal representatives of the deceased are described as “the next of kin and distributees.”
    4. Where an order of a court is susceptible of two constructions, one of which would make it legal and operative, and the other would render it illegal and void, the former must be adopted.
    5. Under the act of March 14, 1853, defining the jurisdiction of probate courts, and, among other things, authorizing them “ to order the dis- ' tribution of estates,” there is no authority to designate by name or otherwise, the persons entitled to receive the funds to be distributed, and such designation if made is void and of no effect.
    Error to the District Court of Hamilton county.
    John H. Piatt died intestate in the year 1822 without surviving issue, but left surviving him the plaintiffs intestate, Martha Ann (who afterward intermarried with David Gwinne) his widow, and defendants, his brothers and sisters and descendants of brothers and sisters.
    Martha Ann Gwinne died in the year 1843, and the plaintiff, Longworth Armstrong, was appointed administrator of her estate in the year 1875.
    After the death of John-H. Piatt, administration on his estate was granted to Nicholas Longworth and Benjamin M. Piatt,, who, after having administered on all the personal estate of the deceased, except a certain claim held by the deceased against the United States, and a large quantity of real estate sold to pay debts, made a final settlement of all matters embraced in their administration, and were discharged in the year 1845.-
    Subsequently, Hannah O. Grandin, a sister of John H. Piatt, was appointed administratrix de bonis non of his estate, who, in the year 1875 recovered and received from the United States, on the claim above mentioned, the sum (as is alleged) of $131,508.90.
    Afterwards, onMay 20, 1875, the probate court of Hamilton county (wherein the letters of administration de bonis non had been issued to Hannah C. Grandin) made and recorded the following order of distribution :
    
      “ In the matter of the. estate No. 15,771*.] of
    .John H. Piatt, deceased.
    “ This day came the administratrix of said estate, Mrs. Hannah C. Grandin, and the next of kin and distributees, by their counsel, and, on motion of the latter, it is ordered that the fund recently recovered by said administratrix, upon the claim of said intestate against the United States of America, after deducting the fees of the attorneys employed therein, as agreed on part of said distributees, and her commissions and expenses of administration, be distributed and paid over to the next of kin and representatives of said intestate, according to the provisions of the statute in that behalf in force at the time of his decease.”
    Subsequently, on September 13, 1875, the original action was commenced in the probate court of Hamilton county, by the plaintiff in error against Hannah C. Grandin, administratrix de bonis non of John H. Piatt, under favor (as is claimed) of the act of April 17, 1357 (S. & O. 619), the first section of which reads as follows:
    “ Sec. 1. That after thirty days from the time of settlement of the accounts of executors, administrators or guardians shall have been made, or shall hereafter be made, by the probate court, and an order of distribution made thereon, if such executor, administrator or guardian shall neglect or refuse to pay to any person interested' in said order of distribution, as creditor, legatee, widow, heir, or other distributee, or otherwise, when demanded, his or her share of the estate or property ordered to be distributed by such probate court, it shall be lawful for any person interested, as aforesaid, to file a petition in .the probate court of the county in which the settlement and order of distribution is made, against the executor, administrator or guardian making such settlement of his or her account, as aforesaid, briefly setting forth in the petition the amount and nature of the claim of the party filing such petition.”
    
      The cause was reserved, under the statute, for final trial and judgment in the court of common pleas ; and by order of the court all the heirs of John H. Piatt were made parties defendant.
    From the judgment of tlie common pleas in favor of defendants, an appeal was taken to the district court.
    Final judgment was rendered in the district court as follows :
    “ And, thereupon, on motion of the defendants for judgment upon the pleadings, this cause came on to be heard upon the pleadings, and no evidence was offered by either of the parties, on consideration whereof the court finds that the plaintiff is not a person interested in the order of distribution set forth in the petition, and that the said motion should be granted.
    “ It is therefore considered by the court that the defendants go hence without day, and recover from the plaintiff their costs herein expended — taxed to $-.”
    The foregoing statement contains all the undisputed facts alleged in the pleadings. Upon them were defendants entitled to judgment ?
    
      Wm. Disney, for plaintiff in error:
    The title to the entire personal estate vested immediately in the widow upon the death of John II. Piatt. Conger v. Barker, 11 Ohio St. 1.
    For the statute of descent and distribution in force at the time, see 2 Chase, 906, § 2, 3, 12. Administration Act, see 2 Chase, 929, § 30; S. & C. 601, § 175. As to probate court jurisdiction, see Cox v. Johns, 32 Ohio St. 532; Swearingen v. Morris, 14 Ohio St. 432; McLaughlin v. McLaughlin, 4 Ohio St. 511. As to meaning of “ next of kin and legal representatives,” see Johnston v. Johnston, 12 Rich. Eq. 259; Rice v. White, 8 Ohio, 216; Ferguson v. Stewart, 14 Ohio, 140; Gardner v. Gardner, 13 Ohio. St. 426; Clayton v. Drake, 17 Ohio St. 368; Coe v. R. R. Co., 10 Ohio St. 377.
    
      Follett, Ilyman <& Dawson, and T. H. Kelley, for defendant in error :
    
      The widow is not next of kin. 2 Jarman, 37-49; Watt v. Watt, 3 Ves. 244 and note (a) and cases cited ; Clayton v. Drake, 17 Ohio St. 367; Luce v. Dunham, 69 N. Y. 36; Murdoch v. Ward, 67 N. Y. 387; Brower v. Hunt, 18 Ohio St. 311; Binney v. Wilson, 11 Ohio St. 426; Curry v. Fulhinson, 14 Ohio, 100; 2 Redfield on Wills, 400; Townsend v. Radcliffe, 44 Ill. 446 ; 1 Swan & C. 568, § 12. As to mean ing of “ legal representative and next of kin,” see 2 Jarman on Wills, 39 ; 2 Redfield on Wills, 402; Saltmarsh v. Candin, 51 N. H. 71; Clayton v. Drake, 16 Ohio St. 367; 6 Simons, 47; 14 Ves. 372; 69 N. Y. 36; 67 N. Y. 387.
    If the real estate, which was not primarily liable, is subjected to the payment of debts, the legatees or heirs have the right to be compensated, as far as possible, out of any personalty remaining in or subsequently coming into the hands of the administrator.
    This is in strict accordance with the doctrine of equitable substitution, which places the surety who has been compelled to pay the debt or other obligation of the principal in the position of the creditor, and gives him the right .to recover the amount from the principal. 2 Lead. Cas. in Eq. 218, 249, 263; 2 Redfield on Wills, ch. XYIII. 2, 13, 19 ; 1 Story on Eq. Jnr. §§ 557, 559, 562, 567; Aldrich v. Cooper, 8 Ves. 389, 394; Trimmer v. Bayne, 9 Ves. 210, 211; Plunket v. Penson, 2 Atk. 294; Westfaling v. Westfaling, 3 Id. 467; Davis v. Topp, 1 Bro. Ch. C. 526; Lutkins v. Leigh, Cas. temp. Talb. 53.
    
      Ben. AT. Piatt and D. S. Bounshell, also for defendant in error.
   MoIlvaink, J.

The statute in force at the time of Piatt’s death, controlling the distributing of his personal estate, was section 30 of the Administration Act of January 25, 1816 (2 Chase, 933), to wit:

“ That it shall be the duty of the administrator or administrators, after all just debts, funeral and other incidental expenses allowed by the court shall have been fully paid, to set off and assign to the widow of the deceased, if any there be, one-third part of all the remaining balance of the personal estate, by her to be held as her proper estate: Provided, The deceased shall have left any legitimate child or children of his body, but, in case the deceased shall not have left-any legitimate child or children as aforesaid, then in that case the widow shall be entitled to all the balance of. such personal estate as aforesaid,” etc.

Under this statute, upon the death of Piatt, the right to the whole of his personal estate, subject to distribution by his administratrix, .became vested in his widow, plaintiff’s intestate, and at her death, although before distribution made, vested in the distributees of her estate according to the statute in- such case made and provided, Conger v. Barker, 11 Ohio St. 1. Upon this state of the law, and the facts essential to its application, it is quite clear that the plaintiff is interested in an order of distribution relating to the personal estate of John H. Piatt, deceased.

It is claimed, however, that the heirs of Piatt, the defendants, are entitled to be subrogated to the rights of creditors whose claims against the estate were paid from the proceeds of real estate sold by the administrators, or to be reimbursed for the loss of the real estate so sold, from the personal estate now ordered to be distributed by the probate court. Let it be granted for the purpose of this case. The plaintiff is not thereby deprived of an interest in the order of distribution. Surely, he is entitled to an account with the heirs, and to any balance that may remain for distribution.

But the principal contention, on the part of defendants, is that the plaintiff is excluded from any interest in the order of distribirtion by the very terms of the order which stands as an adjudication against the plaintiff and is in full force.

The point made is, that, by the terms of the order, distribution is to be made “ to the next of kin and representatives of said intestate,” which description of distributees include defendants and exclude the plaintiff.

True, a doubt might naturally arise as to the meaning of the order, especially from the fact that defendants (as is admitted) are previously described therein as the next of kin and distributees,” were it not for the controlling qualification and explanation of its meaning to wit: According to the provisions of the statute in that behalf in force at the time of his decease.” The statute referred to, as we have shown, gave the whole amount, subject to distribution, to the widow, plaintiff’s intestate.

Again, the only power to make the order in question, was conferred upon the probate court by the act defining its jurisdiction, passed March 14, 1853, in these words: To direct and control the conduct, and to settle the accounts of executors and administrators and to order the distribution of estates.”

It has been settled in Swearinger v. Morris, 14 Ohio St. 432, and Cox v. Johns, 32 Ohio St. 532, that the only order of distribution here authorized to be made, is a general order to the executor or administrator to distribute the funds remaining in his hands according to law. It thus appears that an order designating or naming the distributees is not authorized by law, and therefore would not debar any'one interested in the distribution from asserting his or her interest therein.

In construing this order it is our duty to put upon it such construction as will make it legal and effective, rather than one, which will render it illegal and void.

Applying these principles of construction, we are of opinion that the order of distribution under consideration is a general order, and that the phrase, “ next of kin and representatives of said intestate according to the provisions of the statute in that behalf in force at the time of his decease,” should be construed to mean such person or persons as may be entitled to receive the funds to be distributed.

The district court, therefore, erred in holding that the plaintiff had no interest in the order of distribution.

If, however, the construction we have placed upon this order, could not be maintained, we are quite clear that under the power conferred on probate courts to order the distribution of estates, above stated, there is no authority to designate, by name or otherwise, the persons entitled to take under the order, and if such designation appear in the order it' must be ' as unauthorized and void.

Judgment reversed and cause remand J  