
    Thomas White et al. v. Henry White et al.
    
    1. The fifth clause of the 1st section of the act relating to descents and distribution, passed April 17,1857 (S. & C. 501), is not a mere adjunct of the fourth clause, applicable exclusively to estates which came to the intestate by deed of gift, but applies as well to estates coming to him by descent or devise.
    2. Where an infant daughter died seized of land which had descended from her grandfather to her father, and from the latter to her, the property passed from her, under the fifth clause of said section, to the half-brother and half-sister of her father, though they were not of the blood of the grandfather, to the exclusion of the brothers and sisters of the grandfather.
    Ebbob to the court of common pleas of Muskingum county. Reserved in the district court.
    The original action involved a question of title to land. The several parties claimed as heirs of Ella White, who died in October, 1864 •; and the question was, upon which of the parties does the statute of descents of April 17th, 1857 (S. & O. 501), which governs the case, cast the descent. The following are the facts:
    John White died intestate and seized of the land, in 1842. Whether it came to him as ancestral property, or by pinchase, does not appear. He left at his death Sarah White, his widow, and William H. White and James E. White, his only children and heirs-at-law; William and James being also children of said Sarah White. James E. White dieds a minor, unmarried and intestate, and William H. White thus became seized of the land. William TI. White died - in August, 1864, seized of the land, leaving Nancy Jane White, his widow, who still lives, and his daughter Ella, his only child and heir-at-law, Ella being also the daughter of said Nancy Jane. Ella White died in October, 1864, without issue, unmarried and intestate. Sarah, the widow of John White, intermarried with Andrew Ross; Mary Louisa Ross and Sylvester Ross were born issue of said marriage before the death of William H. White, and are now living. The land (subject to the dowers of Sarah Ross and Nancy Jane White, which have been assigned) is claimed by Thomas White and the other defendants, who are brothers and sisters, and children of brother and sisters, of John White; by Mary Louisa Ross and Sylvester Ross, children of Andrew Ross and Sarah Ross, mother of William H. White; and by Nancy Jane White, mother of Ella White and widow of William H. White.
    The court of common pleas held that, by the true construction of said act of 1857, the land descended, upon the death of Ella White, to Mary Louisa Ross and Sylvester Ross, the half-brother and half-sister of William H. White, and gave judgment accordingly. And now the plaintiffs in error, who are the brothers and sisters of John White, allege that the court erred in its construction of the statute, and should have adjudged the land to them, as the true heirs of Ella White, deceased.
    
      T. J. Taylor and Ball & O’Neill for plaintiffs in error í
    The plaintiffs in error, Thomas White, William White, Henry White, and Mary Crawford, are living brothers and sister of John White, the paternal grandfather of Ella White, and claim the land; being of the same degree of consanguinity to Ella White with Mary Louisa Ross and Sylvester Ross, the brother and sister of William H. White of the half-blood ; and under the sixth subdivision of the first section c.f tbe act of 1853, which provides, that the next ofhin shall be of the blood of the ancestor from whom the estate came, each having one-half of the blood of William H. White, the ancestor of Ella, would inherit the one equal sixth part of the land, as next of kin to Ella.
    But Ella died in 1861, when the act of 1857 was in force, the sixth subdivision of the first section of which provides, that the next of kin to the intestate shall be of the blood of the ancestors from whom the estate came. To give effect to the change thus created, the blood must be traced up from Ella to her immediate ancestor William H., and then to his ancestor John White, to find the blood of the ancestors from whom the estate came; and as Mary Louisa Eoss and Sylvester Eoss have none of the blood of John White, while plaintiffs in error, the brothers and sister of John White, are of his full blood, and therefore the only next of kin to Ella of the blood of the ancestors, William H. White and John White, from whom the estate came, the estate is cast upon them, and upon them only.
    This excludes the children of Edward White and Frances Allen, the deceased brother and sister of John White, which, under the rule expressed in Clayton v. Drake, 17 Ohio St. 371, must perhaps be done.
    The case of Cliver v. Sanders, 8 Ohio St. 501, has not been overlooked; nor do we conceive that it has any application to the case under consideration.
    Should the court, however, construe ancestors in the act of 1857 to mean ancestor, then the said Thomas, William and Henry White and Mary Crawford, being, as we have seen, of the same degree of consanguinity to Ella White with Mary Louisa Eoss and Sylvester Eoss, are entitled each to one equal sixth part of the estate.
    
      A. W. Traim. for defendants in error:
    1. The estate in question, having come to the intestate by descent, will descend to her kindred under the first section of the, statute in force at her death. S. & C. 501.
    We find no parties who take the title to the land in either the first, second, third, or fourth subdivision of the statute The fifth subdivision governs the descent in this case.
    “ The ancestor from whom the estate came ” to the intestate is William H. White. Curren v. Taylor, 19 Ohio, 36, Lessee of Pricket v. Parker, 3 Ohio St. 396; Brewster v. Benedict, 14 Ohio, 385; Cliver v. Sanders, 8 Ohio St. 501; Clayton v. Drake, 17 Ohio St. 371.
    The judgment of the common pleas must be sustained, unless the case of Cliver v. Sanders (8 Ohio St. 501) is overruled.
    2. But if the persons who take the estate are to be found in the sixth subdivision of the first section of the statute., the plaintiffs in error must be left out. The word “ ancestors ” must be read “ancestor.”
    By the rule of the civil law which obtains in Ohio and in this country generally (Clayton v. Drake, 17 Ohio St. 371; Crooke et al. v. Watt, 2 Vern. 124; 2 Pet. 58; Clark v. Sprague, 5 Blackf. 412; 12 Mass. 490), the plaintiffs in error are related to Ella White in the fourth degree, while. the Ross children are related to her in the third degree; and still nearer, Sarah Ross, her paternal grandmother, is her kin in the second degree.
   Welch, J.

This being ancestral property, its. descent is governed by the first section of the act. By the first clause of that section, such property — that is, property which came to the intestate by descent, devise, or deed of gift from an ancestor— passed to the children; by the second clause, for want of children, it passed to the husband or wife; and by the third clause, for want of husband or wife, it passed to the brothers and sisters of the intestate of the blood of the an cestor from whom the estate came. The fourth, fifth, and sixth clauses of the section are as follows:

“ Fourth. If there be no brothers or sisters of the intestate of the Blood of the ancestor from whom the estate came, or their legal representatives, and if the estate came by deed or (of) gift from an ancestor who may be living, the estate shall ascend to such ancestor.”

Eifth. 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 brothers and sisters, or their legal represen tatives, to the brothers and sisters of the intestate of the hall blood, or their legal representatives, though such brothers and sisters be not of the blood of the ancestor from whom the estate came.”

“ Sixth. If there be no brothers and sisters of the intestate, or their legal representatives, it shall pass to the next of kin to the intestate, of the blood of the ancestors from whom the estate came.”

The court below held, and we think correctly, that the property in question descended, under the fifth clause, to the half-brother and half-sister of’ William H. White, who was the ancestor from whom it came. Plaintiffs in error claim that it descended, under the sixth clause, to them, as the next of kin to the intestate of the blood of the ancestors from whom it came. Their argument is, that the fifth clause, equally as the fourth, relates exclusively to ancestral property which came by deed of gift, and, therefore, has no application to this case. They also contend, that the word ancestors,” being in the plural number, the half-brother and half-sister of William II. White are excluded, because they are only of the blood of one of the ancestors from whom the estate came, to wif: William H. White,- whereas they, the plaintiffs in error, are of the blood of loth ancestors, that is to say, of William H. White and John White, the father and the grandfather of the intestate.

We think neither of these positions maintainable. The word “ ancestors” in the sixth clause must be read in the singular number, or at least taken in a distributive sense, and evidently has the same signification as the word “ ancestor ” used in the preceding clauses of the section, meaning the ancestor from whom the estate immediately came. The fifth clause is not to be read as a mere adjunct to the fourth clause, making both alike applicable exclusively to estates which came by deed of gift. There are at least two good reasons why it should not be so read. In tbe first place, it is against tbe plain language of the clause, “If the ancestor from whom the estate came’' —not the ancestor from whom it came by deed of gift — is the language. In the second place, no good reason can be ■ imagined for making property which comes from an ancestor by deed of gift descend otherwise than it would have descended had it,came by descent or devise.

. We are satisfied that the court below was right in holding that this properly descended, under the sixth clause of the first section of the statute, to the half-brother and half-sister of William H. White, the immediate ancestor from whom it came by descent to the intestate, and not under the sixth clause, to the brothers and sisters of John White, the grandfather. That the terms “ brothers and sisters,” as used in the fifth clause of the act, comprehend half-brothers and half-sisters, was directly decided in Oliver v. Sanders, 8 Ohio St. 501.

The judgment is affirmed.

Brinkerhoer, O.J., and Soott, White, and Day, JJ., concurred.  