ANCESTRAL AND NON-ANCESTRAL PROPERTY DISTINGUISHED-

Court of Appeals for Mahoning County.

#### Albert J. Beight v. Mary C. Organ et al.

Decided, February Term, 1917.

*Wills—Estates by Devise—Estates by Purchase—Ancestral and Eon-Ancestral Property.*

Where a testator in his last will and testament provides as follows, “I give, devise and bequeath to my daughter, A. Y., my farm In Poland Township, on which I now reside, consisting of one hundred acres of land, to be to her and her heirs and assigns forever, providing she pay to the executor or executors of my estate, the sum of four thousand dollars. * * * The money arising from the sale of my farm, as hereinbefore bequeathed to my daughter, A. Y., * * * shall than be divided share and share alike. * * * I do hereby nominate and appoint my son J. Y. without bond, executor of this my last will and testament, and give him full power to convey my farm to my daughter, A. Y.” creates and invests said daughter with an estate by “purchase” and not by “devise.”

Farr, J.

This cause comes into this court on appeal from the court below. Adam Yarian, late of Poland township, this county, died testate August 31, 1910, and thereafter his last will and testament was duly admitted to probate in the probate court of this county. Said decedent was twice married; his first wife left one child surviving her, Rebecca Yarian Beight, who, at her decease, left the following named children: Albert J. Beight, Rolandus E. Beight and Mary C. Organ. By the second wife, whom testator survived, the following named children were born: John Yarian, Elizabeth Crum, Samantha Rummel, Anna Yarian and Jonas Yarian.

By the terms of said last will and testament it was provided, among other things, in Item II as follows:

“I give, devise and bequeath to my daughter, Anna Yarian, my farm in Poland township, on which I now reside, consisting of *23one hundred acres of land, to her and her heirs and assigns forever, providing she pay to the executor or executors of my estate the sum of four thousand dollars on or before three years from the date of my decease.”

And in the second paragraph of the same item the following language is used:

‘ ‘ The money arising from the sale of my farm, as hereinbefore bequeathed to my daughter, Anna Yarian, and all my personal property moveable property, household furniture and money and valuable papers, which I leave at my decease, shall be equally divided, share and share alike.”

And at the conclusion of said will it is provided as follows:

“I do hereby nominate and appoint my son, Jonas Yarian, without bond, executor of this, my last will and testament, and give him full power to convey my farm to my daughter, Anna Yarian, or if she should not elect to take the farm at the price mentioned, then my executor shall sell the farm to the purchaser or purchasers the same as I could have done.if I were living.”

Jonas Yarian qualified as executor of said will and the said Anna Yarian, having elected-to take said farm upon the conditions above named, paid to said executor the sum of four thousand dollars and received in turn from him a deed for said farm, dated April 3, 1911, which deed is now of record in this county. The said Anna Yarian died June 3, 1911, unmarried, intestate and without issue, and left surviving her the brothers and sisters above named of the full blood, her only heirs at law.

Jonas Yarian qualified as administrator and duly administered her estate. Said farm was sold and the proceeds distributed equally among her brothers and sisters above named.

Albert J. Beight, son of decedent Anna Yarian’s sister of the half blood, Rebecca Yarian Beight, filed a petition for partition in the court below on April 4, 1915, claiming to be a tenant in common of said Poland township farm; that it was an estate by devise, instead of by purchase, and therefore ancestral rather than non-aneestral property. To this petition general denials were filed by the brothers and sisters of Anna Yarian, deceased. *24Judgment was rendered for defendants in the court below and comes to this court on appeal.

The whole issue is whether the language of said will above quoted creates an estate by “devise” or “purchase”; if by devise it is ancestral property and Section 8573, G. C., applies; if by purchase then it is non-ancestral property, and Section 8574, G. C.,. applies.

Counsel for petitioner, in a well prepared brief and in oral argument cites and relies upon Paragraph 3 of above Section 8573, which provides that if an intestate leave no husband or wife, an ancestral estate shall pass to and vest in the brothers and sisters of the blood of the ancestor from whom the estate came or their legal representatives whether of the whole or half blood, and it is urged that the foregoing, taken in connection with the fore part of said Item II, as follows:

“I give, devise and bequeath to my daughter, Anna Yarian, my farm in Poland township,”

is sufficient to determine it to be ancestral property; that is, it is urged that in order that defendants prevail, it must be absolutely determined that said estate came to Anna Yarian, not by descent, devise or deed of gift, as provided in said Section 8574, G. C., or, in other words, counsel relies partly on the above wording, “I give, devise and bequeath” to determine the issue here.

The foregoing is and long has been the usual and customary language used as introductory to an item of a will, and might be determinative of the issue, if no other and different language were used; it must be observed, however, that to determine the meaning of a will it must be read and considered all together and the latter part, indifferent from that which precedes, must prevail.

Counsel for appellant cites *Patterson*v. *Lamson,*45 O. S., 77, which does not seem in point with the case at bar, unless it is paragraph 4 of the syllabus, which holds that where a father purchased and paid for land for a wedding gift to his daughter, and the vendor conveyed directly to the daughter, and the *25daughter died intestate and without issue, that the title did not come to her by deed of gift from an ancestor. Nor is the case of *Brower*v. *Hunt,*18 O. S., 311, believed to be in point. The 27 Ency. of L. (2d Ed.), 300 and 303, is cited to support the contention that the character of the estate is determined by the legal title, and numerous Ohio cases are quoted as sustaining that view, which is correct but does not determine the issue here; for while equities are inheritable, the course of descent is controlled by the legal ’title. Many other Ohio cases are cited, together with 1 Rockel’s Ohio Probate Practice, Sections 907 to 912, all of which discuss and properly define estates by ‘ ‘ devise, ’ ’ but do not clarify the mental atmosphere in the ease at bar because the term “devise” is defined only generally and abstractly, and by no means in a comparative sense with “purchase,” as it must be in the case at bar. The foregoing authorities therefore must be held to apply it in its generally accepted sense, which Mr. Bouvier defines in Volume 1, at page 861, as follows:

*“Devise.*A gift of real property by a last will and testament. ’ ’

In 3 “Words and Phrases,” p. 2017, it is defined:

“The term ‘devise’ is the proper term to be used in a will to denote a gift of real property”

and citing many cases in which it is so defined.

“A ‘devise’ is a gift of real property by a last will and testament.” *In re Daily’s Estate,*89 N. Y. Suppl., 538; *Hathaway*v. *Smith,*65 Atl., 1058; 2 *Words & Phrases*(2d Series), 29.

And so the authorities might be multiplied. Was the farm a gift to Anna Yarian or did the testator use the term “devise” in a broader sense or inadvertently?

Mr. Bouvier, in Volume 3, at page 2771, defines “purchase” as follows:

*“Purchase.*A term including every mode of acquisition of estate known to the law, except that by which an heir on the death of his ancestor becomes substituted in his place as owner *26by operation of law.” 2 *Washb. on R. Prop.,*5th Ed., 401; *Hoyt*v. *Van Alstyne,*15 Barb. (N. Y.), 568; *McCartee*v. *Orph. Asylum Assn.,*18 Am. Dec., 516.

A title by purchase is one that is vested in a person by his own act or agreement. 2 Blk. Com., 241.

A title by devise is a title by purchase. *Allen*v. *Bland,*134 Ind., 78; 33 N. E., 774.

In its more limited sense, purchase is applied only to such acquisitions of lands as are obtained by way of .bargain and sale for money or some other valuable consideration. *Cruise, Big.*title 30, Secs. 1-4; *Hurst*v. *Hippo,*1 Dall. (U. S.), 2, I L. Ed., 19; *32 Cyc.,*1264-1265; *64 S.*W., 792; *32 Cyc.,*1267; 8 *Words & Phrases,*p. 6983; *Grant*v. *Bennett,*96 Ill., 535; 4 *Words & Phrases*(2d Series), 61.

In *Carder*v. *Commrs,*16 O. S., at page 369, it is said:

“Every lawyer knows that title by purchase is title by any means except descent, and, of course, includes title by devise. ’ ’

The foregoing are partly common law definitions, but the common law is the basis of the Ohio statutes on the same subject, except the statutes limit or extend the provisions of the common law as the case may ,be, and the foregoing are principally for the purpose of comparison. The English common law has been so far modified in this state as to create the two classes by statute, ancestral and non-ancestral property, and so Mr. Walker defines it in his American Law (10th Ed.), at page 392, as follows:

“I am here speaking of the doctrines of the English law. In this country, or at least in this state, they have been so far altered, that ancestral property, as will be seen hereafter, includes all realty acquired from an ancestor, either by descent, devise or deed of gift, where blood is the only consideration; and purchased property includes realty acquired in any other way.”

And continuing the' author very pertinently, at page 418, observes as follows:

“By ancestral property, then, is meant that realty which came to the intestate from his ancestor, in consideration of blood, and *27without a pecuniary 'equivalent/ and which must have come either by descent or devise from a now dead ancestor, or by deed of actual gift from a living one.”

The foregoing is unmistakably to the effect that *ancestral*property is properly acquired where blood is the *only*consideration. And again the author observes as follows:

“And by non-aneestral property is meant all personalty, and that realty which came to the intestate in any other way, whether by purchase from his ancestor or from a stranger, for an equivalent paid, or by actual gift from a stranger, so that the consideration of blood is out of the question; for this makes the sole distinction.”

In the foregoing the author amplifies his definition, making his distinctions very clear. Therefore, “ancestral” property under the Ohio statute is property which comes from an ancestor, the *only*consideration for which is “'blood” or relationship, and *without*a *pecumiary equivalent.*“Non-ancestral” property comprehends all other kinds and there is no refuge from that conclusion. The foregoing is supported by the above author at pages 391, 410 and 411, and by 27 Eney. of L. (2d Ed.), p. 301, where it is said:

“New acquisitions and acquired estates. By new acquisition is meant an estate which the intestate acquired by his own exertion or industry, or by will or deed from a stranger to his blood. In other words, it is an estate obtained by any means other than by descent, gift, or *gratuitous devises*from an ancestor.”

The farm in question was not a *gratuitous devise;*it was, therefore, a “new acquisition.” *West*v. *Williams,*15 Ark., 682; *Frick Coke Co.*v. *Langhead,*302 Pa. St., 172; 52 Atl., 172; *Brewster*v. *Benedict,*14 O., 368.

In the case of *Martin et al*v. *Martin,*135 S. W., 348, it is held that land is considered a “new acquisition” if derived from any source other than by descent, devise or gift from any relative in the parental line, as by a son from father or mother for a valuable consideration. Frauenthal, J., in the opinion observes, as follows:

*28“If the estate is obtained by any means other than descent, gift or gratuitous devise, then it is a new acquisition.”

Other parts of said opinion are to the same effect. And the case of *Brown*v. *Whaley et al,*58 O. S., 654, is cited, the syllabus of which reads as follows:

“A deed of real estate from a father and mother to their daughter, in consideration of our love and affection for our daughter, and in consideration of the dutiful obedience and faithful services to us of our daughter, aaid in further consideration of one dollar to us in hand paid by our said daughter, is not a deed or gift, and the title acquired under such deed came to the daughter not by deed of gift but by purchase.”

And at pages 665 and 666, Burket, J., in the opinion quotes, with manifest approval, the above paragraphs from Walker’s American Law, and further observes as follows:

“how then shall it be solved when the considerations are thus mixed. The title came either by deed of gift or by purchase. It could not come by both; and legally speaking, it could not come partly by deed of gift and partly by purchase. The law as above quoted from Walker solves the question. He says that to make ancestral property * * * there must be no other consideration than that of blood. Here there was other and additional consideration and therefore the title came not by deed of gift. As the title came not by deed of gift it came by purchase. * * •

“Moreover, the consideration of one dollar alone is sufficient to support the deed as between the parties, and to give it the character of being upon a valuable consideration, as contra-distinguished from a good consideration.”

It is true that the foregoing is merely dictum, but it clearly indicates by what process of reasoning a conclusion was reached, and is in point in the case at bar.

Adam Tarian provided that his daughter should pay to his executor or executors the sum of four thousand dollars and upon that condition, and no other, she should receive a deed from his executor; and for such deed he had a perfect right to make provision, and which was in full keeping with his own definitely expressed purpose as stated in the second paragraph of Item II:

*29“The money arising from the sale of my farm.”

Adam Yarian regarded it as a sale, for he expressly so stated, and very properly so, for by no process of reasoning could it be considered a *gratuitous devise.*No doubt the testator believed that his daughter Anna was getting her own share of his estate aside from the payment of said $4,000, but if so, it is not determinable or divisible here. All that said will carried as gratuitous to Anna was the option in her favor to purchase at the price fixed. 'She elected to take under said option, paid the price, received a deed and beyond question took the estate by purchase, making it non-ancestral property; but suppose it should be held to be ancestral property, the effect of such holding would be to divert $4,000 from the estate of Anua Yarian, deceased, from its proper channels of descent, to the estate of Adam Yarian, deceased, from which it must follow partly different lines of descent, thereby working injustice and injury to the heirs of Anna Yarian. Such is contrary to the spirit of the laws relating to such property in this state.

Judgment is therefore rendered for defendants and the petition dismissed.

Pollock, J., and Metcalfe, J., concur.