
    DESCENT AND DISTRIBUTION.
    [Licking (5th) Circuit Court,
    September Term, 1911.]
    Powell, Voorhees and Shields, JJ.
    Wm. H. Goff et al. v. Lemuel R. Disbennet et al.
    Nonancestral Property of Intestate Dying Without Other Heirs Than Nephews and Nieces Descends to Them Per Capita.
    Title to property acquired by purchase, upon death of the owner intestate, with no heirs except nephews and nieces, is cast by Gen. Code 8574 upon such nephews and nieces as a class, and they take under Gen. Code 8581 per capita and not per stirpes.
    [Syllabus approved by the court.]
    Error to common pleas court.
    
      Crum, Raymond & Hedges and Fulton & Fulton, for plaintiffs in error.
    
      Kibler & Kibler, for defendants in error.
   PER CURIAM.

An order of distribution of the proceeds of the sale of lands in partition is sought to be reversed.

The question arises under the construction of R. S. 4159, (Gen. Code 8574), relating to the descent- of real estate which -came to the intestate by purchase.

The action was for the partition of the lands of one Samuel Goff who died intestate, never having married and who had no brothers or sisters living at the time of his death, but who had had six brothers and sisters all of whom 'had died before his own death leaving children surviving them, to whom the lands mentioned and described in the petition descended by virtue of said statutes.

It is claimed on the part of plaintiffs in error that these lands descended to the children of his brothers and sisters as legal representatives of such brothers and sisters, and that the lands - should be divided not as though the children were, themselves, the next of kin of said Samuel Goff and inherit the same direct from him upon his death, but that it should be divided as though the brothers and sisters were living; and they contend that.such construction is sustained by the Supreme Court in the case of Dutoit v. Doyle, 16 Ohio St. 400.

In that case the intestate left surviving several children and also issue of the two other children who were then deceased. One left three children and fhe other five. The Supreme Court held that the children of the deceased children of the intestate took such share of said estate as their parents would have taken 'had they been living at the death of the intestate. In other words, the estate was divided equally among all the children of the intestate living at his death, and including such as had died before that time leaving children surviving them, the grandchildren receiving such share of the estate as their parents would have received had they been living. That is, the share of the deceased child who left three children was divided into three portions and the share of the deceased child who left five children was divided into five portions. It is claimed that this decision justifies the contention of plaintiffs in error under this section of the said statutes. We think this question has been settled otherwise by the Supreme Court in Ewers v. Follin, 9 Ohio St. 327, and followed and fully sustained by Parsons v. Parsons, 52 Ohio St. 470 [40 N. E. Rep. 165].

In Ewers v. Follin, supra, it is held that by the provisions of the tenth section of the act regulating descents, passed February 24, 1831, when an estate descended to nephews and nieces, legal representatives of brothers and sisters, no brother nor sister of the intestate surviving, the nephews and nieces took per capita; and if a nephew or niece had died before the intestate, leaving children, such' children took per stripes the share of the deceased parent.

Section 10 of that act provided, that “when any of the before-mentioned children, brothers, sisters, or their legal representatives, in the same degree of consanguinity or kindred, came into partition of any real estate, they shall take per capita; but where one or more of them are dead, and one or more of them are living, the issue of those dead shall have a right to partition; and such issue, in such case, shall take per stirpes.”

Under this provision, the parties in this ease would be included as legal representatives of the brothers and sisters of the intestate. They are in the same degree of consanguinity or kindred — all either living nephews and nieces of the intestate, or children of a nephew or niece deceased; the former would take per capita, the latter per stirpes.

Gen. Code 8581 reads as follows:

“"When all the descendants of an intestate, in a direct line of descent, are of an equal degree of consanguinity to the intestate, whether children, grandchildren, or. great-grandchildren, or of a. more remote degree of consanguinity to such intestate, the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common degree of consanguinity may be.”

It is claimed that this section does not apply to the case now under discussion for the reason that it applies only to lineal descendants and not collateral descendants. The Supreme Court, however, in the case decided in Ewers v. Follin, supra, have disposed of this contention. It is said at page 330:

“It might, upon a first inspection of that section, be supposed that the ‘descendants’ to which it refers, were the lineal descendants only of the intestate, such as grandchildren and great-grandchildren; but a more careful examination shows the contrary. It will be seen that in Sec. 6 children as well as grandchildren and great-grandchildren are named, which, if the lineal descendants of the intestate alone are intended, would have been unnecessary, the children of the intestate having been provided for in Sec. 5. The concluding language of that section also shows, that descendants, in the sense of those to whom the estate descends, were in the contemplation of the legislature. Its provisions are to apply ‘so. that the estate shall pass to such persons of equal degree of consanguinity to such intestate in equal parts, however remote from the intestate such equal and common'degree of consanguinity may be.’
“Our conclusion is that the legislature, instead of limiting the rule as provided in Sec. 10 of the act of 1831, intended to extend and apply it to every case in which an estate was to be divided among a class of descendants, whether their consanguinity to the intestate be lineal or collateral.”

This construction is also followed and commented upon by the Supreme Court in Parsons v. Parsons, supra. On page 485, the court say:

“The section was under consideration in Dutoit v. Doyle, 16 Ohio St. 400, where the principle of representation, was! recognized, and made the basis of the conclusion, that in ease® of this character, grandchildren take per stirpes, and not' per capita. To the representative character with which they are thus clearly invested, representative rights are appropriate; and full effect should be given to the provision which- defines their inheritance, and limits it to ‘that portion of the estate to which such deceased child would be entitled if - such deceased child were living.”

And this applies in cases of this kind after those who are heirs to such estate have been ascertainéd, in case any such heirs shall have died leaving children or other issue surviving them. That is, the nearest of kin of an intestate under this section of the statute became his heirs at law and took the estate per capita, but if any such nearest of kin have died leaving children or other issue they shall take by representation only such share of the estate of the intestate as - their parents would have taken if living, or per stirpes.

We think the court of common pleas did not err in making its order of distribution in this case and that its judgment should be affirmed.

It appears that some of the plaintiffs in error have accepted the amounts awarded them in the order of distribution made in the court of common pleas, and an answer to the petition in error has been filed setting forth this fact and- claiming the same to be a waiver of any error that may have occurred in said proceedings in the court below.

We do not so hold, since the amounts .received, by them have never been in dispute, but the same have been conceded by all parties to belong to such plaintiffs in error as have received them. ■

The answer to the petition in error will be dismissed. Exceptions.  