
    Isaac S. Brower et al. v. Jesse Hunt et al.
    1. An estate which came to an intestate from a deceased hushand under theseeond section of the statute of descents of April 17, 1857, does not pass to> those of the blood of the husband who are not of kin to the intestate, under the first section of said act. The first section is inapplicable to an estate-which descended-to the intestate notin right of blood; and the meaning oF the words “descent” and “ancestor” in the first section of the revising, act of 1857, is the same as it was in the first section of the act revised.
    2. The second section of the act referred to, regulates the descent in all cases-not provided for in the first section. The meaning of the second sectiom is, that "if the estate came not by descent, devise, or deed of gift,” as provided for in the first section, it shall descend in the course prescribed in the second.
    3. The policy running through all of our “ statutes of descents ” in respect to> the descent of ancestral estates, is not to prefer the blood of the ancestor to-the exclusion of the blood of the intestate; but to prefer those of the. kindred of the intestate who are of the blood of the ancestor; and where a preference is given to the blood of either to the exclusion of the other, it is • given to the blood of the intestate.
    4. 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.
    5. "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.
    Error to the court of common pleas of Hamilton county. Reserved in the district court.
    On the 18th of March, 1865, the defendants in error filed their petition in the court of common pleas of Hamilton county, praying-a judgment for the recovery of the possession of specific real property. The petition contains two causes of action.
    1. The facts constituting the first cause of action, as alleged, are: *That Edward Hunt died on or about the 11th day of [312-May, 1811, seized in fee simple and in possession of the lands described, situated in Hamilton county, having made and published liis last will and testament, which was admitted to probate and record on the 13th day of August, 1811, whereby he directed that his lands, except those specifically devised, should be equally divided among all his children, according to quantity and quality, the division to be made by three persons to be appointed by his ■executors, and if the heirs could not agree upon a selection of the .several parts, the commissioners were to apportion to each his part in severalty by lots cast, and such lot and division should be final .and conclusive.
    That Thomas Hunt and Jacob Hunt were sons of the said Edward Hunt, and, with others of his sons and daughters, survived him, as his heirs at law and devisees.
    That in pursuance of the directions of the will, three persons, .appointed by the executors, on the 15th day of December, 1812, proceeded to and did divide the said lands into nine parts, assigning to each devisee one part, allotting to Jacob the tract described in the first cause of action, as a part of his share, and to Thomas .another tract equal in value.
    That, on the 10th day of December, 1830, the heirs and devisees, including Thomas and Jacob, made and delivered a deed, reciting the said partition, but that the original had been lost, annexing a • copy and confirming the same by mutual releases.
    That, from the date of the partition, on the 15th day of December, 1812, the several devisees, including Thomas and Jacob, had been in possession of the tracts allotted to them, respectively, ac■cording to the division made, until the 25th day of March, 1817 when Jacob and Thomas agreed to exchange with each other tne •several tracts of land to them respectively assigned, and, to effect the same, on that day, each executed and delivered to the other a deed conveying the tract assigned to him in the partition; that the consideration named in each of said deeds was the sum of •$800, but the same was merely nominal, no money in fact being paid, the true and only consideration being the mutual exchange. 313] *That, by this means, Thomas Hunt became seized and possessed of the tract of land of which that described in the first ■cause of action is a part, containing about sixty-eight and one-half acres, and remained so until the 15th day of September, 1858, when he died intestate and without issue, leaving his wife, Joanna Hunt, ■surviving him, who, on the 28th day of January, 1865, died also ¡intestate and without issue.
    That the -plaintiffs are the only brothers and sisters of Thomas Hunt; and that the defendants, who are the brothers and sisters■ and their legal representatives of Joanna Hunt, and are not of the-blood of Thomas Hunt, are in possession of the said real estate, and. unlawfully detain the same from the plaintiffs.
    2. The facts constituting the second cause of action, as alleged, are:
    That Thomas Hunt died on the 15th day of September, 1858,. seized in fee simple and possessed of the several tracts of land in-Hamilton county described, amounting in all to over five hundred acres, which were acquired by Thomas Hunt in his lifetime by purchase.
    That Thomas Hunt died intestate and without issue, leaving his wife, Joanna Hunt, surviving him ; and that Joanna Hunt died on-the 28th day of January, 1865, intestate and without issue, in possession of the same lands.
    That the defendants are the only brothers and sisters and their-legal representatives of Joanna Hunt, and the plaintiffs are the only brothers and sisters of Thomas Hunt.
    That the plaintiffs, by reason of the premises, are owners in fee-simple of the said lands, and entitled to the possession of the same, which the defendants unlawfully detain and withhold from them.
    The answer and counter-claim of the defendants deny the allegations of fact set forth in the first cause of action, except the-possession of the said premises by the defendants, and deny the title of the plaintiffs; and, as to the second cause of action, deny the title of-the plaintiffs ; and, by way of counter-claim, allege that the defendants are the owners in fee of said lands, and are in possession thereof, and ask the court, by its ^judgment, to [314-establish their title and quiet them in their possession thereof.
    The cause having been submitted to the court without the intervention of a jury, the following conclusions of fact and of law were-found: •
    That Edward Hunt, on the 11th day of May, 1811, died seized, of the lands in the first cause of-action described, and-'disposed of the same and of other lands by will, as in the first cause of action; described and stated. That a partition of said lands was had and made, and deeds made interchangeably between his heirs, as-stated in the first cause of action. As to the tract or lot of land in’ the first cause of action described and sought thereby to be recovered, that it was allotted in the partition to Jacob Hunt, and that. .another tract or lot of land was allotted to Thomas Hunt, and that •they remained in the possession of the tracts or lots so allotted to them respectively until the 25th .day of March, 1817, as stated in -the first cause of action. That, on the 25th day of March, 1817, ’Thomas Hunt, by deed duly executed, conveyed to Jacob Hunt the tract or lot so allotted to and possessed by him, above found; ¡and Jacob Hunt, by deed duly executed, conveyed to Thomas Hunt the tract and lot so allotted and possessed by him, as above found. 'That the consideration named in each of said deeds was eight hun■dred dollars, but that no moneyed consideration passed between them, the execution and delivery of one deed being the real consideration for the execution and delivery of' the other. That the tract or lot of land so conveyed by Jacob Hunt to Thomas Hunt is the tract or lot described in the first cause of action, and was .acquired by Thomas Hunt in the manner above found and stated.
    As to the tracts and lots of land described in the second cause of action, that they were acquired by Thomas Hunt by purchase during his lifetime, as stated and described in the second cause of .action.
    That Thomas Hunt, in his lifetime, was seized and possessed in fee simple of all the tracts or lots of land described in the first and ¡second causes of action ; and being so seized and possessed, on the -315] 15th day of September, 1858, died intestate *and without issue, leaving his wife, Joanna Hunt, him surviving, who thereupon became seized and possessed of all the said tracts or lots of land; ¡and being so seized and possessed, on the 28th day of January, 1865, died intestate, unmanned, and without issue.
    That the plaintiffs are the brothers and sisters of the whole blood -of Thomas Hunt, or their legal representatives, as stated and de¡scribed in the petition of the plaintiffs, and are not of the blood or ¡kindred of Joanna Hunt; and that the defendants are in possession of all the said tracts and lots of land; and that the said defendants rare the brothers and sisters of the whole blood of Joanna Hunt, or their legal representatives, as stated and described in the petition, rand are not of the blood or kindred of Thomas Hunt.
    And thereupon the court find, as conclusions of law, that the ¡plaintiffs, upon the death of Joanna Hunt, became and were ontirtled to inherit, as heirs at law, all the said tracts and lots of land, .and that the same passed to them under the first section of the ¡statute of descents and distributions; and .that the plaintiffs are entitled to recover from the defendants the possession of all said, tracts and lots of land.
    And the court find the issues for the plaintiffs, in pursuance of said conclusions of fact and of law.
    To which findings and conclusions of law, and to each of them, and as to each part of said tracts and parcels of land, the defendants then and there excepted.
    And judgment was rendered thereon, i.n favor of the plaintiffs, for the recovery of the possession of said lands, and for costs..
    To reverse this judgment of the court of common pleas, the defendants filed their petition in error in the district court, and it was therein reserved for decision in this court.
    
      W. Y. Gholson, for plaintiffs in error:
    1. Upon the death of Thomas Hunt, his wife Joanna became entitled, under section two of the act of descents, as amended April 17, 1857, to an estate of inheritance in the lands in which he had acquired. Birney v. Wilson, 11 Ohio St. 426-433; Fritz v. Fritz, 16 Ohio St. 218.
    *2. JoannaHunt,thuspossessedofafeesimploestateinlands, [316 having the absolute right to dispose of the same by deed or will, dies intestate, without issue; and it is now claimed, and this eourt is asked to declare that in such a case the disposition of her estate in those lands is governed by a provision of the law which excludes any of her kin from its enjoyment.
    The ground upon which the court is asked to come to this conclusion is that a general rulo heretofore deduced from previous decisions of this court, and stated in a syllabus, shows that Thomas Hunt was an ancestor of Joanna Hunt, within the meaning of section one of the act of descents; and therefore the succession to' her estate in those lands must be governed by that section.
    It is not claimed that this court has ever decided that, within the meaning of the act of 1857, or any other act, the husband was the ancestor of his wife; but this eourt having decided in different cases that a collateral kinsman, or even a child or grandchild, might, within the mearning of the previous act, be an ancestor, and, in so deciding enunciated a rule that “anyone from whom the estate was inheritable” might be an ancestor, and “the ancestor from whom the estate came was he from whom it was immediately inherited.” Prickett v. Parker, 3 Ohio St. 394. It is claimed that this case must be governed by that rule.
    The fallacy in this claim or argument is giving to a general rule, enunciated in a decision, or deduced from decisions, the effect of a. statutory enactment, and upon a question of its application, looking to the words of the rule, instead of the facts and circumstances,, the nature of the cases, in which the decisions were made. 2 Austin on Jurisp. 357.
    Eor the rule in determining the effect of a decided case, see LeFance v. Malcomson, 1 H. L. C. 637-655; Wilkinson v. Page, 6 M. & G. 1012-1015; Campbell v. Mackey, 1 My. & Or. 603.
    3. There being certainly no case in which this court has decided, that a husband is an ancester of a wife, within the meaning of the statute of descents, and the only expression of opinion found in our 317] reports being to the contrary (Birney v. *Wilson, 11 Ohio St. 426-431), the question really presented — and so it was regarded in this case — is whether there be such an analogy between a case like the present, arising under an amendment of the former statute, and tho-previously decided cases arising under the statute, that they must, furnish the rule for a decision. Whether, the court having decided that an uncle was an ancestor (Brewster v. Benedict, 14 Ohio, 383), and that a brother was an ancestor (Prickett v. Parker, 3 Ohio St-396),- it follows, by analogy, that a husband is an ancestor within the meaning of the statute, which provides that on his death without issue lands which he had acquired shall pass to and vest in his-wife.
    It is undoubtedly true that iu the absence of express decision, we-may properly look to analogous cases. But see Scribner v. Lockwood, 9 Ohio, 184, 186, 187; Wild v. Hobson, 2 V. & B. 105-113;. Fletcher v. Sondes, 1 Bligh. N. R. 145-216.
    4. The decision of this case depends upon the construction of a statute, the act of April 17, 1857, regulating descents. This and a. previous act, that of March 14, 1853, introduced new and important provisions as to the rights of property of husband and wife, in, the event of death without issue. This case, involving an inquiry into those provisions in connection with the others contained in the act, is to be decided by the rules applicable to the construction of a statute — to the construction of the act of April 17, 1857. For tho rules of construction, see State v. Blake, 2 Ohio St. 147-151; 3 Ohio, 187-193; Fitch v. Dunlap, 2 Ib. 78, 79; Becke v. Smith, 2 M. & W. 191-195.
    5. As to the construction of this statute :
    (1.) The act provides “that if any person "shall die intestate, having title or right to any real estate of inheritance in this state, which title shall have come to such intestate by descent, devise, or deed of gift, from any ancestor, such estate shall descend and-pass in parcenary, to Ms or her kindred.” That is, to the kindred of the intestate. Now, it is expressly found by the court below that the defendants in error, brothers and sisters of Thomas Hunt, “are not of the Mood or kindred of the said Joanna Sunt.” How, then, can its decision that her real ^estate of inheritance descended [318 and passed to them, be sustained ?
    It may be very plausibly argued that the act of 1857 regards husband and wife, for the purpose of a descent, as being of kin to each other. Kindred implies a community of blood or a common lineage. The kindred of husband and wife is somewhat different. There is nothing strange, but on the contrary, it accords with the analogies of the law, to regard husband and wife as being of kin to each other. But the idea would be carried beyond all reason or propriety to claim that the kindred of the husband are the kindred of the wife. And could it be so extended, the same principle would of course make the kindred of the wife the kindred of the husband; would establish a community of blood between their respective kindred, and in this view the brothers and sisters of the wife would be preferred.
    But it is not, it can not be, claimed that the kindred of the husband are the kindred of the wife.
    (2.) We have not only the qualifying words, “his or her kindred,” but there is not a single clause in the first section where an estate of inheritance passes, that does not necessarily imply that those taking are the kindred of the intestate.
    (3.) Taking all the clauses of the first section together, this singular result would follow from the application of that section to the present or a similar case of husband or wife. The estate would pass — -first, to the children; second, to the brothers and sisters of the husband or wife from whom the estate came; third, to the half-brothers and sisters of the intestate, not of the blood of the husband or wife from whom the estate came; fourth, failing these three classes, the estate, under the act as passed, would escheat, unless it should happen that the intestate, having taken the estate from one husband or wife, should have married again, leaving husband or wife, and then upon the husband or wife so surviving, the third section of the act cast an estate of inheritance. Can it be possible that a law purporting to regulate the disposition of the estate of an intestate, which makes no other or further provisions, and provisions so inconsistent, can apjoly to his or her case ? Surely, this court will never so decide.
    319] *(4.) The great argument for the defendants in error is, that the legislature did not, by admitting husband or wife to take an estate of inheritance, intend to change any further the “ great ancestral principle” which has prevailed from the very beginning. If this be so, it is singular indeed that the legislature should only admit one class of the relatives of such ancestor, his or her brothers and sisters, or their legal representatives. He or she might have father or mother, uncles and aunts, cousins of every degree; but all of them would be excluded. And they would be excluded, not that the brothers or sisters, father or mother, uncles or aunts, or cousins of the intestate might take the estate, but to secure an es-cheat to the state. That such is not the policy of this state is shown by the act of April 16, 1862. 59 Ohio L. 50.
    (5.) Before the court concludes to adopt the construction claimed for the defendants in error, its full, effect upon the disposition of property held by husband or wife should be carefully considered. It will affect not only property taken under section two of the statute of descents, but property taken from husband or wife by^ ■devise or gift from one to the other.
    It is submitted that the adoption of a principle in reference to the ■statute of descents, which would require, to prevent gross and manifest injustice, an inquiry into the considerations moving either to (devises or gifts of real estate from husband or wife to each other, ■would be attended with manifest inconvenience. Husbands or wives, so taking real estate, have always heretofore been supposed to take them as absolute owners, and subject to the ordinary rules of disposition and descent. It can not be supposed that the legislature intended to change the law in this respect.
    6. As to the definition of “ ancestor ” in the decisions of the Supreme Court. It can not be conceived that those decisions ever contemplated that one would be an “ancestor” of another, when there was no descent in the order of nature or blood, and no cornmon lineage. Valentine v. Weatherill, 31 Barb. 655-659; McCarthy v. Marsh, 1 Seld. 263; Brewster v. Benedict, 14 Ohio, 368, 381; Greenlee v. Davis, 19 Ind. 60-62; 2 Bla. Com. 220-223.
    7. That in all legal definitions of either- “ descent,” ancestor,” or * heir,” the relation of blood or kindred is expressed, or as- [.120 sumed, can not be doubted. Parker v. Prickett, 3 Ohio St. 396; Coke upon Littleton, 2375.
    Any one from whom an estate was derived by act of law and right of blood, was properly considered an “ ancestor,” the person taking the estate an “ heir,” and the mode by which it was taken a “ descent.” Such being the well established import of those terms, the legislature, first in 1853, and afterward in 1857, introduced into the general act of descents clauses, under which a husband, in a contingency specified, might take an estate from his wife, or a wife from her husband. The solution of any apparent difficulty is obvious — the estate is taken by act of law, but not by right of blood. And, therefore, in no proper legal sense does the relation of ancestor and heir arise. The estate can not be said, in a proper legal sense, to come within the general language in the statute, when it speaks of an estate of inheritance which came by descent from an ancestor.” The rules of construction require the court to restrain those general words to cases to which they properly apply. Culbertson v. Duly, 7 W. & S. 195-197.
    The opinion clearly expressed in Birney v. Wilson, 11 Ohio St. 426, 431, is in, accordance with this view, and certainly entitled to much weight, though a direct decision upon the precise p>oint presented in this case was avoided.
    If the estate of Joanna Hunt came not by descent from an ancestor, so as to bring its disposition under section one, certainly no argument can be required that it must be disposed of under section two. Even if the words, but by purchase, should be added, it would make no difference. For all estates, which do not come by descent in the proper legal meaning of that word — that is, which are not derived by act of law and right of blood — are regarded as acquired by purchase. This is shown by’the case of Birney v. Wilson, and is an elementary principle of the law.
    8. As to the lands in the first cause of action, it is difficult to comprehend upon what legal pi’inciple they can be regarded, having come to Thomas Hunt by devise from his father. They were conveyed to him by deed, expressed to be for the consideration of 821] eight hundred dollars. But it is said there *was an exchange, a mere exchange. If this had been all, and no deed executed under our law, as hold in Lindsley v. Coates, 1 Ohio, 243, it would have in no way affected the title. The real question is : Can you look to the consideration of a deed and say, because the property given as the consideration came from an ancestor, therefore the property taken must be so considered? If so, how far and into how many changes will you trace the property? No authority has been cited to sustain such a claim; and the case of Terry’s Appeal, 28 Conn. 339-342, is to the contrary.
    In this case, the parties have in their express contract named a pecuniary consideration. What right have those claiming under them to show a different consideration, in the assertion of a right purely legal? If it makes a difference in the character of the estate how can the court say that the parties may not have intended that very difference ?
    
      S. & S. R. Matthews (with Geo. B. Hollister), for defendants in error:
    1. It is admitted that Joanna Hunt derived her title by virtue of the second clause of the second section of the statute of descents of 1857, from her husband, Thomas Hunt, who died intestate and without issue, himself the purchaser of the estate.
    It is admitted that the descent cast from her must be determined either by the first or the second section of the same act, if there are persons in being, at her death, to answer the description of any of the classes, that, by these provisions, are entitled to take, in the event of her death intestate and without issue.
    The first section describes the classes of persons who shall take where the title of the intestate came by descent, or devise, or deed of gift from any ancestor; the second section describes those who shall take where the title of the intestate came not by descent, or devise, or deed of gift from an ancestor.
    2. The main question, therefore, is, how did Joanna Hunt acquire title to the lands in controversy — by descent or not ? Because we 322] can not determine how far title passed from her, *dying intestate, until we know how it passed to her; and if we know how it came to her, then we can certainly determine how it passed from her. If it came to her by descent, it descends from her under the first section; if it came to 'her not by descent, it descends from her under the second section.
    This renders necessary a discussion of what constitutes title by descent; and that involves a definition of the terms ancestor and heir; for, according to legal usage, descent is an act of the law which transmits, in case of intestacy, the title of a person, who, in that relation, is called an ancestor to another, who thereby is constituted an heir. Descent is a relation established by law between an ancestor and heir.
    It is admitted that there may be cases in which the law appoints one person to succeed to an estate, upon the death of the former owner, intestate, and yet the appointee would not be the heir of the latter, nor acquire title by descent. Such was the case provided for in section 3 of the act of 1853, wherein it was provided that, in default of heirs, and to prevent an escheat to the state, the husband or wife shall take the estate. In that case, the husband or wife did not take as heir, but in default of heirs. Birney v. Wilson, 11 Ohio St. 426; Watkins on Descents (William’s ed.), 5 et seq.
    But, in the present case, Joanna Hunt did not acquire her title under section 3 of the original act of 1853 It descended and passed to her under the provisions of the amendatory section 2 of the act of 1857.
    It is argued that this can make no difference as to the character in which she takes, or the nature of her title, because consanguinity is essential to the idea of heirship; that there can be no title by descent from an ancestor to an heir, unless they are connected by blood; that descent must be, not only by act of law, but in right of blood; that “in all legal,definition of either, ‘descent,’ ‘ancestor,’ or ‘ heir,’ the relation of blood or kindred is expressed or assumed.”
    That this is true, in the law of England, is admitted. 3 and 4 Wm. IV., e. 106.
    And it is equally true that it has been upon this assumption that the statute of descents in the various states in the country have been from time to time modeled.
    *It is likewise true, that the natural relationship by blood [323 has furnished the motive and ground out of which has sprung the very idea of inheritance; and is the foundation of all jurisprudence on that subject.
    But, nevertheless, the relation of heirship is a creature of positive law; and the law has not always limited itself to tho declaration and enforcement of tho natural claims of blood. It opened tho way for their postponement by an express and solemn act of the party, by conferring the power to alienate, during life, and creating tho capacity of making a will. And going beyond this, every system of law, founded upon the civil law of Eome upon the continent of Europe, has extended the principles of heirship, beyond tho limits of a relationship by blood, by authorizing tho adoption of a stranger to the blood, in tho line of descent.
    Our own statutes contain an emphatic and express contradiction of the doctrine that consanguinity is essential to heirship ; and contain the opposite doctrine, that, without respect to blood, ho is the heir whom the law makes, or authorizes to be made, such. See the act of April 29, 1854, to enable any person to designate an heir at law (S. & C. 506); and the act to authorize the adoption of children, passed March 29, 1859 (S. & C. 506.)
    Now, hero, at least, is a statutory definition of an heirship, in which not only is tho idea of consanguinity not essential, but is not at all embraced; is, in fact, expressly excluded.
    It certainly can not be contended that tho force of common-law ideas, and especially those which have grown out of feudal principles, is so groat in this state that they can not be abrogated by statutory enactments; or that heirship, by right of blood, is a natural right, which the law may declare and enforce, but can not modify, by restriction or enlargement; that it is a thing external to all jurisprudence, beyond its jurisdiction, and which it can not refuse to recognize.
    The real truth is, the fact of actual blood relationship is not the necessary foundation in nature of the theory of inheritance. The true basis of the doctrine is the idea of tho family, and of the relation of that idea to tho institution of property. And in every state, 324] and system of jurisprudence, *tho principles of inheritance have been developed and applied, according to that constitution of tho family, which its policy has sanctioned. In England and countries whore tho common law prevails, the constitution of the family has been determined by blood relationship. And, of course, as consanguinity has been the primary basis of tho natural family, it has boon the principal element to determino the law of inheritance in all systems; but not solely in those systems where tho family has been constituted so as to embrace strangers to the blood. And upon this is founded the theory of adoption, which has boon introduced into our system by the statutes just referred to. McKenzie’s Studies in Roman Daw, 130, 284; Civil Code Napoleon, arts. 343, 352 ; Droit Civil Francais par MM. Aubry ot Rau, sec. 560, vol. 4, p. 749.
    3. But for a sufficient and authoritative legislative declaration of what shall be necessary to constitute heirship, we need not go beyond the very second section of the act of 1857, now under discussion.
    In fact, that is the very place to go in search of the definition, and the only place to which we can rightfully go. It declares that “ if the estate come not by descent,” etc., “ it shall descend and pass as follows.” In default of children and their legal representatives, it is enacted that it shall descend and pass to the husband or wife, relict of the intestate; then to the brothers and sisters of the whole blood; then to the brothers and sisters of the half-blood; then to the father; then to the mother, etc., of the intestate. IIow can it be reasonably claimed that the estate, taken by a surviving wife under this section, is not taken by descent, when the very language of the statute, in describing its passage to her, says that it shall descend? Every one else who takes under the same section, it is admitted, takes by descent as an heir from an ancestor. What is there in the language of the act to create any distinction between the case of a wife and that of a child or a brother ? They are classed together as acquiring title in precisely the same mode, and there is nothing whatever to suggest or warrant any distinction as to the character in which they take. The amended section three, as passed * April 16, 1862 (59 Ohio L. 50), refers to all the enumerated [335 classes, including surviving husband or wife, as persons entitled to inherit the estate under section 2 of the act.
    The fact that the provision now under discussion occurs in the second instead of the third section is not a mere accidental circumstance. It bears the marks of an express and indubitable design. It is not a mere change from “ in lieu of kindred ” to a “ preference to kindred.” See Birney v. Wilson, 11 Ohio St. 426.
    The obvious inference is, that by inserting the provision in favor of the surviving husband or wife, in section 2 of the act of 1857, instead of section 3; by declaring that the estate, which, in the given contingency, should pass to and vest in him or her, should descend upon them; by enacting that they should take, not when “ there shall bo no person living entitled to inherit the same by the provisions of this act,” but as second in the list of those who do inherit, the general assembly deliberately designed not only to change the contingency on which the estate of the surviving husband or wife of an intestate should depend, but the character in which, when they took at all, they should take it; and to enact that thereafter, in preference to all others, except issue, and in respect to estates that had not come by descent, they should take by descent, and as heirs, not only of an estate of inheritance, but as inherited.
    
    
      4. If we pass now from a consideration of tho terms of the statutes to that of the decisions of this court, made upon questions arising under them, and to the rule of construction bearing upon this controversy declared by them, we shall find, not only that our conclusion is consistent with it, and supported by it, but virtually embraced in it. That rule is stated by the court, in the case of Birney v. Wilson, 11 Ohio St. 432, in tho following language:
    “ In accordance with this view, it may now be regarded as the settled law of Ohio that the word ' ancestor,’ as used in our statutes of descents, means any one from whom the estate was inheritable by the intestate, as heir, in the absence of other and nearer heirs. Brewster v. Benedict, 14 Ohio, 385; Penn v. Cox, 16 Ohio, 32; 326] Prickett v. Parker, 3 Ohio St. 394. *But those cases do not decide but that the ancestor need not be related in blood to the intestate, so as to reconcile the whole section, as they were all cases in which such relationship in fact existed.”
    Tho criticism on tho other side, as to the application of this rule to tho present controversy, is altogether unsatisfactory. And this will clearly appear, wo think, from a survey of the history of tho adjudications which have established tho rule, and the principle of construction which rendered its establishment a legal necessity. That principle is stated by Judge Hitchcock, in tho case of Brewster v. Benedict, 14 Ohio, 385, in the following extract: “ True, the word ‘ancestor’ is made use of; and by ancestor we understand, in common parlance, one from whom a person lineally descended. But this word must be taken in connection with the whole subject-matter of the act or instrument in which it is used.”
    
    Now, it is perfectly true that, in the several cases in which this rule was enunciated, the question whether consanguinity was essential to heirship did not specifically arise. It is equally true that, prior to the passage of the act of April 29,1854, to enable any person to designate an heir at law, it could not have arisen, because that was the first instance in the history of our law in which it became possible for a stranger to the blood to be an heir. But it is also true that, in each one of those cases, the court was pressed in argument, precisely as it is here, with the suggestion that the words “ ancestor ” and “ heir ” had a fixed and traditional meaning, which excluded the idea that a nephew could be his uncle’s ancestor, or that a younger brother could be the ancestor of an older; and it was called upon to construe these words according to the alleged “ order of nature.”
    To that appeal this court has, in every instance, substantially replied, according to the rule of construction as already stated, and upon the principle which justifies and requires it. We have nothing to do with the order of nature, or the meaning of these terms as fixed in any other system than our own. The whole subject is one of legislative regulation, and the words themselves are of statutory meaning. Ho is the heir whom the statute declares shall inherit; and he is the ancestor *from whom he immediately [327 inherits. And if the court, in establishing this rule, did not have in view the fact that there might be heirship without consanguinity, because the statutes of descent, during that time, confined the title by descent within that limit, it nevertheless did have in view the possibility that that limit might be removed by the authority of the legislature. Penn v. Cox, 16 Ohio, 30.
    But the argument for us, up>on this point, takes still another stop. The rule in question had boon judicially declared before the passage of the act of 1S57. It prevailed at that time. It is to be presumed that the general assembly know it. Practically, the rule was simply this : whoever is or may be entitled, by virtue of section 2 of the statute of descents, to take the estate of an intestate, is thereby constituted his heir; his title is by descent and not by purchase; the person from whom it comes is his ancestor. On the death of such heir, still seized of the estate, intestate, it will pass as ancestral property, according to the provisions of the first section of the act.
    With the knowledge of this rule of interpretation in force, and in view of the necessary result of its application, the legislature change the statute of descents, so that thenceforward the estate of the intestate, in default of issue, it is declared, shall descend to the surviving husband or wife, as second in the order of inheritance, and classed high in the rank of heirs. Can this be considered as anything else or less than a legislative recognition of this rule of interpretation ? Does it not coaso to be a mere judicial rule of construction, and become a statutory enactment? If so, it is then entitled, by the authority of the opposing argument, to be understood and applied in the grammatical sense of its very words, and to embrace every case that falls within its abstract meaning. Robb v. Irwin, 15 Ohio, 689; Glenn v. Bank United States, 8 Ohio, 79.
    5. If the definition of heirship claimed by the opposing- counsel be correct, and includes consanguinity as an essential and necessarily implied element, it ought to be found as prevailing in the sys328] tem of descents in other states, similar *to our own, where a husband or wife is entitled to succeed to the inheritance of an intestate.
    It may be useful, therefore, to inquire how iar the proposition is supported by judicial decisions elsewhere. McDonald v. Walton, 2 Mo. 48; Frantz v. Harrow, 13 Ind. 508; Johnston v. Lybrook, 16 Ind. 473; Greenlee v. Davis, 19 Ind. 60 ; Roberts’ Appeal, 39 Penn. St. 420 ; Mace v. Cushman, 45 Maine, 520.
    It abundantly appears, by these cases, that the Ohio rule that any one is the ancestor, whether blood relation or not, from whom the intestate might have inherited the estate, as heir under the statute, in the absence of other and nearer heirs, is recognized and applied in the very case as the one at bar, where the element of consanguinity is wanting.
    In fact, the idea of blood relationship did not enter oven into the common-law definition of title by descent. Tomlyn Law Dictionary, title Descent.
    It is only because, as matter of factj according to the English law, heirship is limited by consanguinity, that the idea of blood relationship is implied in the application of the definition ; but the English law of descents might well bo changed as to this fact, without, in any respect, affecting the terms of the definition.
    6. Having established the principal proposition, that Joanna Hunt, the intestate, derived her estate by descent, as heir to her husband, by virtue of the provisions of section 2 of the statute of descents of 1857, our argument is complete; for such being the case, the absolute legal necessity arises that she d3dn'g intestate, the inheritance is transmitted from her, according to the provisions of section 1 of that act.
    If any difficulties arise in tracing that descent, under the terms of section 1, from an independent consideration of its provisions, they are to be regarded as minor and subordinate, and completely subject to the resolving power of this predominant and overruling principle. It is no longer a question of balancing reasons. It becomes a judicial duty of giving effect to a legislative declaration.
    (1.) The first and only serious objection arising upon the language of section 1, is that it expressly describes all persons entitled to take under it as the kindred of the intestate,- *and that its [329 specific provisions contain the same implication, from which the inference is deduced that no person can be brought within any of its provisions, unless he is of the blood and lineage of the intestate, naturally descended from a common stock.
    This is the lino of extra-judicial observation incorporated by Judge Peck in the opinion in the case of Birney v. Wilson, 11 Ohio St. 431.
    We take issue, however, directly with the principal proposition of the argument of the objection. It is, as stated by Judge Peck, that “ all the recipients of the inheritance in the ascending and descending line, are required to be of the kindred and blood of the intestate.”
    
    The language of the section is, that “such estate shall descend and pass in parcenary to his or her kindred” (that is, to the kindred of the estate) “in the following course;” and then proceeds, in separate subdivisions, to specify and define the classes and descriptions of persons who are to take, the order in which they shall take, and the kind of estate, in one instance, which shall be taken.
    Now these words, “ to his or her kindred,” instead of furnishing the key to the entire section, being exalted to the office of ruling and determining the whole thought of the law, are in fact altogether insignificant. The statute would mean, precisely, without them what it means with them. They are mere surplusage — words of recital— expressing, when originally introduced, the presupposition doubtless on which the scheme of the statute was framed, but carried along, in successive amendments to the law, without intention as to the new elements from time to time introduced. They are not the controlling and efficient words of the law. The operativo provisions, which are definite, particular, and self-executing, are those contained in the specific subdivisions, in which the very intentions of the law are plainly and authoritatively declared and commanded. The second section does not contain them at all, yet they are more germane to its subject than to that of the first section, which confessedly has mainly to treat of the blood and kindred of the ancestor, 830] rather than of that *of the intestate. The use of these words in the connection in which they are found, does not require anything.
    But looking at the substance of section 1 of the act of 1857, wo find but two requirements that are imperative. They are: 1. That the title of the intestate shall have come by descent, or by devise, or deed of gift, from an ancestor; 2. That the claimant shall answer the description of the person entitled to take, according to the express provisions of some one of the subdivisions of the section, in which the possible successors to the estate are classified. Both these requirements are fulfilled by our claim. The title of Joanna Hunt came to her by descent from Thomas Hunt, who was therefore her ancestor from whom the estate came; his brothers and sisters are expressly declared to be entitled in the event which has happened to succeed to the inheritance; and Judge Peck, in the opinion referred to (Birney v. Wilson, 11 Ohio St. 432), citing the cases in support of the definition of the word “ancestor” we have already quoted, says: “ But these cases do not decide but that the ancestor need not be related in blood to the intestate, so as to reconcile the whole section, as they were all cases in which such relationship in fact existed.” It might well be that the legislature would think it a better policy for the state that Joanna Hunt should succeed, as heir of her husband Thomas, to his estate, in preference to his brothers and sisters; but the enactment of such an improved policy does not contain the essential implication that, therefore, on her decease intestate, her brothers and sisters would bo preferred to those of her husband, from whom the estate came, and who, but for the amendment under which she acquired her title, would have boon preferred by the law before her.
    We think the wliolo difficulty vanishes upon the application of the rule of interpretation declared by this court in the case of The State v. Blake, 2 Ohio St. 147-151.
    What was the fact here? The legislature had before it the existing provisions of the act of 1853, by which, in no event, could the surviving husband or wife take an estate of inheritance in ease of intestacy, except in the event of a complete failure of heirs. It do-381] termined in case of ancestral property, *on failure of issue, to give to such a life estate; and in case of property acquired by purchase, to constitute them heirs. It amends the two sections of the law for that specific purpose; and with its mind directed to, and engrossed by, that particular subject, it drafts and inserts the sjoecific clauses, looking alone to that end, without intending any other change, and without consideration as to the exact harmony between the new intentions, and the existing terms and language of the law in other parts. What is the fair and reasonable method of receiving and understanding the new expression of its will? Must not so much of the old meaning be given up as is inconsistent with the new and specific provisions ? Certainly the known and intended purpose of the amendment must not be defeated by the assumed rigidity of a meaning acquired by a context, which has been broken. Therefore, if it is still to be hold, that the persons who alone can take, under the provisions of the first section, must be of the “kindred” of the intestate, then the particular persons, expressly described as being entitled to take, must be held to be within the new and accommodated meaning of the word, as by law, of that “kindred.”
    This transmutation of the meaning of the word “kindred” would not establish the claim of the brothers and sisters of the intestate in preference to the brothers and sisters of the ancestor, as is argued on the other side. The blood does not thereby become common, so as to make the two families one in blood. It merely separates, as to ancestral property inherited by her, the surviving wife from the natural family of which, in fact, she is one in blood, and introduces her, by act of the law, on the principle of adoption, into the family, and blood of her husband, so that his kindred by blood become her kindred in law.
    
    (2.) The next objection to our proposed construction of section one of the statute, is founded on the argument ab inconvenienti. But supposed anomalies in the law of descents furnish no reason for not enforcing the law.
    There is no system of statutory descents to which similar objections may not be urged. They are all arbitrary, partial, incomplete, *and inconsistent. They all vary with the unac- [332 counted-for accidents by which they have been influenced.
    But the most astonishing anomaly is that of the adverse claim in the present case, and of the argument in its support. It is argued that the title by descent finds its exclusive legal justification and ground upon right of blood, in order to support the claim of the collateral hindred of Joanna Hunt to an inheritance through her to them, without a drop of the blood of its last purchaser to convey it; and that, to defeat the claim of his own brothers and sisters, than whom none could be nearer to him in blood, except his own offspring; and to accomplish this, insists that one who must take title, if at all, by descent, docs, nevertheless, not inherit, and although enumerated as one among heirs, yet takes by purchase; and, in the name of a doctrine which magnifies the claims of consanguinity as the only foundation of the law of inheritance, repeals, in the particular case, the immemorial law of ancestral property. See Cliver v. Sanders, 8 Ohio St. 508.
    The whole matter may be summed up in brief, to this effect:
    But for'the passage, of the amendatory act of 1857, the brothers and sisters of Thomas Hunt would have succeeded, as nearest heirs, in the events which happened, to his estate. That act introduced an amendment to the law in but one single particular. It made provision for the wife, in default of issue, as a new and nearer heir. It did not touch the pre-existing law and course of descents in any other point. It left all things else as they had always been before. 'It did not disturb the course of succession, except for that one purpose, and only to that extent. It did not change, in any respect, the principle of the law of inheritance. It simply recognized, in the given case, the claims to heirship, of the affinity created by marriage, as superior to the previously admitted claim of the nearest collateral relationship by blood. It took the wife as heir, into a line of heirs, already fixed, without a word to indicate the intention of giving her any further preference, much less of exalting her to the independent position of head and original of a new fee. The law is fully satisfied by her undistui'bed enjoyment of the inheritance, as the preferred heir of her husband. That having been ae333] complished, the *whole object and intent of the amendment is exhausted. Having now died intestate, seized of the same estate which she thus inherited and enjoyed, she left it in the same character in which she took it. According to the same law, which thus preserves it, it passes from her to those who are, by the very words of the statute, made her heirs, because, but for its interposing her to a place of precedence over them, they would have been the next heirs of her husband. The stream of descents, diverted for a single purpose, returns immediately upon its accomplishment to its accustomed and time-worn channel.
   White, J.

The lands described in the second cause of action were acquired by Thomas Hunt by purchase. On his death, these lands descended to his surviving wife, Joanna, in foe; and the principal question for determination in the case is, whether, on her decease, the lands descended to the brothers and sisters of Thomas, or to the brothers and sisters of Joanna.

The ease arises under the act regulating descents, of 1853, as amended April 17, 1857 (S. & C. Stat. 501) ; and the question is to be solved by ascertaining whether the succession is regulated by the first or second section of the act.

All intestate estates are by our law divided into two classes, and the line or order of succession is to be determined by the class to which they belong. The first section creates, defines, and prescribes the course of the first class, and all estates embraced within this section have been appropriately called ancestral. All estates not included in the first class necessarily belong to the second, are non-ancestral in their character, and pass under the second section. Persons claiming as heirs to an intestate can not trace their title to the same estate partly under the first and partly under the second section.

The order of succession is the same in the descending line both as to ancestral and non-ancostrnl property. In the collateral and ascending lines it is different, and whoever is admitted to J-he succession must possess the qualifications prescribed by the statute for the line in which he claims to stand.

The distinction between 1 hese two classes of estates was *in- [384-troduced into our law by the act of February 22, 1805. 1 Chase, 515. Prior to this act, beginning with the ordinance, the principle of the civil law prevailed, and no distinction was made on account of the title by which the estate was acquired, or the ancestor from whom it was derived.

Under the act of 1805, none but the kindred of the intestate could take the estate ; and the classification of ancestral property was: That if the estate came by descent, devise, or deed of gift, from an ancestor,” it should descend: 1. To the children of the intestate, etc.; 2. To the brothers and sisters of the intestate of the blood of the ancestor from whom the estate came, etc.; 3. To the next of kin, to and of the blood of the intestate; and of non-ancestral property: “ That if the estate came not by descent, devise, or deed of gift, but was acquired by purchase by the intestate,” it should descend — (1) to the children of the intestate, etc.; and these failing, to his kindred in the order named.

The ancestral principle here first introduced was carried no further in favor of the blood of the ancestor, than as such blood was found in the brothers and sisters of the intestate, and its only effect was to work a preference in their favor against the other brothers and sisters of the intestate.

By amendment in 1814, (2 Chase, 854,) the ancestral principle was extended as it is found in the acts of 1853 and 1857, having been carried forward in the successive revisions, with the exception of the provision, in the acts last named, as to the life estate for the husband or wife.

By the act of 1824 revising the act of 1805, provision was made for the taking of the estate by the surviving husband or wife. The words but was acquired by purchase by the intestate,” used in the revised act in describing non-ancestral property, were omitted; and the word kindred,” which had been applied in the former act to both those taking ancestral and non-ancostral estates, was retained only in connection with those taking ancestral property.

The provision for the husband or wife was contained in section seven, which provided : “ That when any person shall die intestate, or who has heretofore died intestate, leaving no one of kin of the 335] blood of such intestate, or if the kin *or heirs of the blood of such intestate be an alien or aliens, the estate o’f such intestate shall pass to and be vested in the husband or wife, relict of such intestate ;” provision being made for the alien heir to appear within a time prescribed, and prosecute his claim.

The next section provides : “ That when any person shall die intestate, having-title to any real estate in this state, and there shall be no person entitled to inherit the same by the provisions of this act, the said real estate shall escheat to and vest in the state.” The husband and wife are here ranked as persons who inherit the estate before it can escheat; and are thus, in a certain sense, constituted heirs, not in right of blood, but as persons who take the estate, in lieu of kindred, by act of law, in right of the marital relation that had existed between the suiwivor and the intestate.

The seventh section of the act of 1831 was the same as the seventh section of the act of 1824; and the eighth section of that act, like section eight of the act of 1824, provided that if there was no person entitled to inherit the estate by the previous provisions, it should escheat.

In the Lessee of Little et al. v. Lake et al. (8 Ohio, 290), the lessees of the plaintiff claimed as heirs of a widow who inherited the,lands in controversy from her deceased husband, under the 7tb section of the act of 1831; and the distinction is recognized between those, under the statute, who are heirs in right of blood, and husband and wife who are. made such to each other, but not in right of blood. In commenting upon the statute it is said in the opinion that “ the only contingency upon which the widow becomes heir is mentioned in the 7th section, and is where there is no heir of the blood, of the intestate.”

The fact that the estate had been inherited by, or, which is the same thing, that it descended to the intestate, did not make it ancestral property under the act of 1824, nor the act of 1831.

The only persons who could have inherited under ihese acts, were kindred, and husband and wife. The latter, it is true, took only on failure of kindred, and if an estate thus cast upon the surviving, husband or wife, dicl not pass as non-ancestral *undcr the [336-second section, it could mot pass under the first, for want of persons-qualified to take under that section, and it would, consequently, have escheated. But where a wife inherited an estate from an in.testate husband, there was a descent from the husband, and the latter became as to the estate, in a certain sepse, the’, ancestor of the wife, but the descent was not such, nor was he such an ancestor* as was contemplated by the section of the statute which defined and. prescribed the course of ancestral property.

Thus in the ease of Lessee of Little et al. v. Lake et al.J already, referred to, the estate, which was admitted to have been inherited by the wife from the husband, was evidently regarded as passing to her kindred as non-ancestral, under the second section; and thorxgh the' estate had been inherited by her, it was not for this-reason considered as ancestral property to be controlled by the first, section as an estate as to which there was no k-indred of the husband capable of inheriting.

In ascertaining whether an estate passed under the first or under the second section, the controlling question, under the act of 1831,. was not, and is not now, whether the intestate took the estate in the capacitj of heir; but, whether the estate, if it came by descent, must not, in order to come within and pass under the first section, have come to the intestate in right of- blood?

In the act of 1853 (3 Curwen, 2270), and in the amendatory sections 1 and 2, of the act of 1857, the classification, and course of descent of ancestral and non-ancestral property, is the same as, in. the act of 1831, except as to the new provisions made for the surviving husband or wife.

The provision in the seventh section of the act of 1831 in regard to aliens was omitted, and the remaining part of the section providing for husband and wife, and the eighth section providing for -escheat, were continued and made to form the third section of the .act of 1853. In this new section the husband and wife were not -ranked as heirs.

But an estate thus acquired, would, of course, descend as nonaneestral property, as it would have done under the act of 1831, 387] where the surviving husband or wife taking the ^estate under similar circumstances, was referred to as inheriting it.

The third section of the act of 1853 became inoperative and was superseded by the amendatory second section of the act of 1857, in respect to the taking of a non-aneestral estate by the surviving husband and wife. For the estate of inheritance which the survivor took, under the third section, on failure of kindred, by section two, as amended, he or she takes in preference to kindred, and next after lineal descendants.

Yiewed in the light of the former acts of which the act of 1857 is a revision, does the first section of that act embrace and regulate the, descent of an estate vested in a husband or wife under the sec- • -ond section ?

The first section provides :

“ Sec. 1. That when any person shall die intestate, having title -or right to any real estate or [of] inheritance in this state, which title shall have come to such intestate, by descent or devise, or deed ■of gift from any ancestor, such estate shall descend and pass in parcenary, to Ms or her kindred, in the following course:
“ 1. To the children of such intestate, or their legal representatives ;
“ 2. If there be no children or their legal representatives living, the estate shall pass to and vest in the husband or wife, relict of such intestate, during his or her natural life;
“ 3. If such intestate leave no husband or wife, relict of himself <or herself, or at the death of such relict, the estate shall pass to and vest in the brothers and sisters of the intestate who may be of the ¡blood of the ancestor from whom the estate. came', or their legal representatives, whether such brothers and sisters be of the whole or Shalf-blood of the intestate;
“ 4. If there he no brothers and sisters of the intestate, of the blood of the ancestor from whom the estate came, or their legal representatives, and if the estate came hy deed or [of] gift from an .ancestor who may be living, the estate shall ascend to such ancestor ;
5. If the ancestor from whom the estate came be deceased, the •estate shall pass to and vest in the brothers and sisters of such ancestor, *or their legal representatives ; and for want of such [338' brothers and sisters, or their legal representatives, to the brothers and sisters of the intestate, of the half-blood, or their legal representatives, though such brothers and sisters be not of the blood of the ancestor from whom the estate came;
6. If there be no brothers and sisters of the intestate, or their legal representatives, the estate shall pass to the next of kin to the Intestate, of the blood of the ancestor from whom the estate came.”

This section is a transcript of the first section contained in the acts of 1831 and 1824, except as to the provision of a life estate for husband or wife. Its office is, and always has been, to define ancestral estates and to proscribe their course of descent; and in ascertaining the cases to be brought within its operation and governed by it, respect must be had to all its parts, and to the order of succession which it prescribes.

The question at issue turns on the construction of this section.

The rule to be observed in giving construction to a revising statute is thus stated in Dutoit v. Doyle, 16 Ohio St. 405 : “ The court is only warranted in holding the construction of a statute, when revised, to be changed, when the intent of the legislature to make •such change is clear, or the language used in the new act plainly requires such change of construction.”

The difficulty is found to exist in ascertaining the sense in which "the words “descent” and “ancestor” are to be understood. The sense in which these words were used in defining ancestral estates, in all the former statutes, is plain. Descent was used in its common-law sense, and by it was meant an estate which came to the intestate by law, in right of blood; and by ancestor was meant the person from whom the estate thus immediately came.

Is it clear that the sense of these words, as used in the first section, has been changed ?

It is claimed that the provision in section two, giving to the surviving husband or wife a fee, shows, by implication, that the meaning has been so enlarged as to bring within the operation of the-first section an estate which has thus vested.

339] *Can the construction thus claimed be upheld consistently with the provisions of the section and the course of descents which; it prescribes ?

We think it can not, and for the following reasons :

. 1. The ancestral principle found in our former and present statutes of descent is not a preference of the blood of the ancestor to-the exclusion of the blood of the intestate, but a preference of thosoof the kindred of the intestate who are of the blood of the ancestor ; and where a preference is given to the blood of either, to the exclusion of the other, it is given to the blood of the intestate.

2. By the construction claimed, the blood of the intestate would be wholly excluded, unless in the exceptional case of a marriage between kindred; and no rule would exist for ascertaining the-kindred of the ancestor who ought to be admitted in lieu of the kindred of the intestate, except as to the brothers and sisters of such ancestor and their representatives. And if a marriage between relations by blood is to be regarded as an exception, in such ease remote kindred would be admitted who would have been excluded but for the marriage ; while kin of the intestate, in like degree, in a marriage between strangers in blood, would be excluded.

3. Every provision of the section in favor of the blood of the ancestor would be-practically inoperative in regulating the descent of an estate which had thus come to an intestate, except the one providing for the brothers and sisters of tho ancestor and their-representatives; and these failing, howsoever numerous the existing kindred of the husband or wife from whom the estate came, the estate would escheat rather than any of them should take.

4. If Thomas Hunt can be regarded as the ancestor of Joanna, within the meaning of the first section, and the estate on her death-passes as an ancestral estate to his brothers and sisters, to the exclusion of her own brothers and sisters, the same principle would make her the ancestor of the brothers and sisters of Thomas thus taking the estate, and on the death of either of them without issue, would cast his share of the estate not to his brothers and sisters, but to the brothers and sisters of Joanna. And should one 340] of them die without tissue, his share would return to thexemaining brothers and sisters of Thomas; and thus, as each died without issue, the share of the deceased would continue to alternate* 'from the one family to the other, until the last person seized died leaving issue, or the class of persons capable’ of taking was exhausted.

In regard to the first of the foregoing propositions, it may be further remarked that it clearly appears, from an examination of •the section, that the ancestor and the intestate contemplated by it .are to be of a common blood.

We find not only the words “his or her kindred ” used in connection with the intestate', and as descriptive, in a general sense, -of the persons provided for in the line of descent; but, on examination of the subdivisions of the section in which such persons are more particularly described, where it is not expressed, it is necessarily implied that they are of a blood common to the intestate and the ancestor. Thus, in the third clause, brothers and sisters of the intestate of the blood of the ancestor are provided for, without regard to whether they are of the whole or half-blood; and this is the only provision for brothers and sisters of the whole .blood. In the fifth clause provision is made for the brothers and sisters of the half-blood who are not of the blood of the ancestor. The necessary inference is, that the brothers and sisters of the whole blood are of the blood of the ancestor, and are provided for in the third clause.

The last clause provides for the next of kin to the intestate of the blood of the ancestor. It can have no operation until there is a failure of brothers and sisters of the intestate both of the whole .and half-blood. But the principle of a community of blood which it recognizes is doubtless that upon which the preceding clauses, as to the descent of the inheritance, is founded.

These objections to the construction claimed for the defendants in error are not mere arguments ab inconveniently but they arise out of the structure of the section as a scheme of succession, and show the scope of its legitimate operation.

The general rule to guide in the construction of statutes is thus -stated by Story, J., in Gardner v. Collins, 2 Peter, 93 : *“ What. [341 the legislative intention was, can be derived only from the words they have used, and we can not speculate beyond the reasonable -import of these words. The spirit of the act must be extz’aeted from the words of the act, and not from conjectures aliunde.”

To the same effect is the statement of the rule as found in Smith’s Com. on Stat. and Const. Law, sections 714, 647, 648; Dwarris, 582, 583.

The provision for a life estate in the first section, is special in its nature, and leaves the remainder of the estate undisposed of. And whether husband and wife, for the special purpose of this provision,, are to be regarded as of kin, or whether the provision is to be considered as an exception, can make no difference. The general rule of construction in such case is, that “when a general intention is-expressed in a statute, and the act also expresses a particular intention incompatible with the general intention, the particular intention shall be considered an exception.” Sedg. on Stat. and Const. Law, 423; Smith, supra, see. 652.

The second section was intended to provide for all cases not included in the first.

The descriptive words of the section are, “ if the estate came not by descent, devise, or deed of gift;” yet they have always been regarded as embracing a devise or deed of gift from a stranger. Brewster v. Benedict, 14 Ohio, 385; Penn v. Cox, 16 Ohio, 31; Birney v. Wilson et al., 11 Ohio St. 427.

The meaning is, “if the estate came not by descent, devise, or deed of gift,” as provided in the first section.

The effect will be the same if the word ancestor is supplied; for in the sense in which the words descent, ancestor, and other words-are used in defining the class of estates that are to pass under the first section, in the same sense must they be understood when used ■ negatively in defining the class of estates to pass under the second section. If this were not so, there would be a class of estates unprovided for, and the classification would be incomplete.

In regard to the statutes of adoption passed April 29, 1854, and March 29, 1859 (S. & C. Stat. 506), it is sufficient to say that they 342] contain express provisions prescribing the course of ^descent from the adopted heir, and define his legal status to be that of a. child of the adopter.

There is no such provision regulating the descent from an intestate husband or wife. That is left to the operation of the statute-of descents alone.

Moreover, the course of descent by the first section is not to the-next of kin of the ancestor, but, after the specified classes, to the next of kin to the intestate, being of the blood of the ancestor.

Besides, if it were admissible, by mere construction, to separate tbe surviving wife from her own blood, and introduce her, on the principle of adoption, into the blood of her husband, so that his-kindred by blood would become her kindred in law, it is not perceived how the persons to take under the sixth clause could be ascertained, unless her status as to the blood of the husband wore defined, so as to show in what line and degree she was to be hold as related to him by blood.

The remaining question is as to whether the lands described in-the first cause of action came to Thomas Hunt by devise from his-father.

In our opinion they did not. The title mentioned in the statute is the title under which the intestate immediately holds. The title to these lands came to Thomas by deed of conveyance from Jacob, and the character of the consideration can not alter the fact and make that a title by devise from the ancestor which was in fact a title by deed from Jacob. There was no mistake in the partition which the deeds between Jacob and Thomas were merely designed to correct. Without the conveyance from Jacob, Thomas had no title to these specific lands, legal or equitable; yet the operation of the will was the same without the deed as with it. The title of Thomas, therefore, can not be said to have come to him directly by devise from his father; and for the purposes of descent he must be regarded as a purchaser.

The judgment of the common pleas will be reversed, and, upon the facts found, judgment will be entered for the plaintiffs in error.

Day, C. J., and Brinkerhoff, Scott, and Welch, JJ., concurred.  