#### Freeman Lathrop et al *v.*Harvey Young et al.

1. The act of March 4,1865 (S. & S. 304), amending sections 1 and 2 of the act regulating descents, was intended to enlarge the classes of persons who might take the estate on the failure of those provided for by the original sections; and the operation of the provisions of the original sections, as contained in the amending act, is the same as it was before the amendment was made.

2. Nor does section 3, as amended April 16, 1862 (S. & S. 306), affect the operation of the preceding sections — one and two. Section 3 is only intended to provide for cases where there is a failure of persons capable of taking under the preceding sections; and the amendment of section 3 merely enlarges the class of persons entitled to the estate before it can escheat.

3. The act of April 20,1854, and the act of March 29,1859 (S. & S. 506, 507), give to the adopted heir the legal status of a child of the adopter, and the statute requires him to be regarded as such child in tracing descent to or from him in the cases therein specified; but in cases which do not come within those acts, the operation of the statute of descents is the same as if such acts had not been passed.

4. Section 1 of the statute of descents, as amended March 4, 1865, provides as did the s'ame section in the amended act of April 17, 1857, for the descent of such estates only as descended to the intestate in right of blood, or which came to him by devise or deed of gift from one from whom he might have inherited the same in such right; and where the estate came to the intestate otherwise, its descent from him is regulated by the second section of the act. *Brower*v. *Hunt,*18 Ohio St. 311, approved and followed.

Error to the Superior Court of Cincinnati.

The facts of this case are briefly these.

Asbury Young being seized, by purchase, of the property now in controversy, died August 4,1861, without issue, and intestate. Hnder the statute of descents (April 17, 1857) then in force, the property descended to his wife and relict, Eliza Young, who held it until November 2,1868, when she died, intestate, and leaving no issue nor husband surviving her.

The plaintiffs, who are her brother and sisters, or their *452representatives, became possessed of the property, and brought this action to be quieted against the title 'claimed by the defendants, who are the brother and sisters of Asbury Young, from whom it had thus descended. Their petition, setting out these facts, was dismissed, on demurrer, the defendants being held entitled to the inheritance under paragraph 5 of section 1 of the statute of descents, as amended March 4, 1865, as brother and sisters of the ancestor from whom it descended to Eliza Young.

To reverse this judgment the present petition in error is prosecuted.

*William Stanton,*for plaintiffs in error:

I. This case can not be distinguished from *Brower*v. *Hunt,*18 Ohio St. 311, except that in that case the intestate died *before,*and in this case the intestate died *after.*the amendment of March 4, 1865. S. & S. 304. That amendment simply incorporates into the first section of the statute of descents certain additional provisions, none of them applicable to cases like this, in which the persons intended to be benefited by such additional provisions can, from the nature of the case, have no existence. Of course, the legislature never intended, by these additional provisions, to give the statute a new meaning in cases to which they can never, by any possibility, be applied. It is impossible to decide this case against the plaintiffs without overruling *Brower*v. *Hunt.*

II. The statute has always divided estates, for the purposes of descent, into two classes. The words “ from any ancestor,” although they do not appear in the second section, are clearly implied. This is clear from the fourth section, which refers to the second as prescribed for estates “ which came not by descent, devise, or deed of gift from any ancestor.” The second section covers all estates not described in and covered by the first. *Little*v. *Lake,*8 Ohio, 289; *Brewster*v. *Benedict,*14 Ohio, 368; *Penn*v. *Cox,*16 Ohio, 32; *Birney*v. *Wilson,*11 Ohio St. 433; *Brower*v. *Hunt,*18 Ohio St. 311.

*453The distinction between these two classes of cases is that between estates which came to the intestate *by right of*blood, and estates which came to the intestate *otherwise*than by right of blood.

III. This appears both from the history and the structure of the statute. In the earlier history of the statute, as at common law, there was no descent except by right of blood. In 1824, the statute provided for the vesting of the estate in the husband or wife, relict of the intestate, in default of any kindred of the intestate. This was the first provision for the vesting of the estate in .one not of the blood of the intestate. An estate which passed from husband to wife by virtue of this provision, descended from the wife, not as ancestral, but as non-ancestral property. *Little*v. *Lake,*8 Ohio, 289 ; *Penn*v. *Cox,*16 Ohio, 32; *Birney*v. *Wilson, 11*Ohio St. 433.

In 1857, the law was amended. What was the innovation? Not that it provided for the vesting of an estate of inheritance in one not of the blood of the intestate, for that had been provided for by all the legislation of the state since 1824. The change was simply this : That, while *prior*•to 1857, *all*the kindred of the intestate had been preferred to the relict husband or wife, *in*the amendment of 1857 the relict husband or wife is .preferred to *some*of the kindred of the intestate. This was the only change, and it was made, as Judge Matthews conceded in his able argument on the other side of this question, in *Brower*v. *Hunt,*“ without a critical adjustment of the new and old parts of the law, perhaps without full foresight of the necessary effects it must work; but certainly without any intention to obliterate the long-established difference between ancestral property and that acquired by purchase.”

Here we may refer to the rule of construction stated in *Conger*v. *Baker,*11 Ohio St. 13.

IV. The word “ ancestor,” when this statute was first framed, meant, at common law, and in the statute, any one from whom an estate descended (or might have descended) by act of law *and night of blood.*There is no such fixed *454connection, or correlation between the words “ ancestor,” “ descent,” and “ heir,” that if the meaning of one be changed, all must change. If Eliza Young took the estate of her husband by “ descent,” there are two kinds of descent— descent by right of blood, and descent otherwise than by right of blood. If she took it as “ heir,” there are two kinds of heirs. But it does not follow that there are two kinds of “ ancestors.” The legislature continued to use that word in the sense in which it had always been used, as meaning one from whom the estate came to the intestate by act of law and *right of blood.*Wharton’s Law Diet., tit. Ancestor; *Springer*v. *Fortune, 2*Handy, 56. The court will not assume that the legislature intended to change its meaning because the sense of some other word may have varied. *Turney*v. *Yeoman,*14 Ohio, 218.

V. The first section is clearly formed upon the idea that there shall be a community of blood between the ancestor and the intestate; that both shall have descended from the same stock. *Brower*v. *Hunt,*18 Ohio St. 340.

The requirement of the first section, that the estate of the intestate “ shall descend to his or her kindred,” shows that the legislature intended that all the persons described in the succeeding paragraphs, should be kindred of the intestate, and it excludes from the operation of that section all persons who are not his or her kindred.

VI. The words “ kin” and “ kindred” are treated both by lexicographers and lawyers as synonymous. *Clayton*v. *Drake,*17 Ohio St. 371, et seq.; 4 Kent’s Com. 439 (394); *2*Black. Com. 504, 505 ; Webster’s Dictionary. That they mean, in the statute, descendants from the same stock, is clear from the frequency with which the word “ consanguinity” is used in the sixth, eighth, and twelfth sections.

After Asbury Young’s decease, there was no relationship or connection between his widow and the brothers and sisters of her deceased husband, either by consanguinity or affinity. *Birney*v. *Wilson,*11 Ohio St. 431; 1 Bish. on Mar. and Div., sec. 314, and note; Tyler on Inf. and Coverture, 839. *455The word “kindred” can not, upon any valid rule of construction, be disregarded,, or its meaning varied. *Allen*v. *Parrish,*3 Ohio, 193 ; *Bloom*v. Richards, 2 Ohio St. *402; Turney*v. *Yeoman,*14 Ohio, 218.

VII. The position of defendant’s counsel, that “ for all legal purposes of descent, marriage is kinship,” is a two-edged sword. If the brothers and sisters of Asbury Young are “ kindred in law” to his widow, her brothers and sisters are “kindred in law,” — “of the blood of” — Asbury, and as such entitled to the estate, under the third clause of the first section.

VIII. If the estate should descend according to the first section, the proper construction of that section would require it to pass to the plaintiffs under the third clause.

The first claus^, casting the descent upon the children of the intestate, who can not, in a case of this kind, be of the blood of the “ ancestor,” and the closing paragraph of the fifth clause, show that tljere is no intention on the part of the legislature that the estate shall, in every case, vest in the blood of the ancestor.

The statute prefers the 'brothers and sisters of the whole blood of the intestate to those of the half-blood (see second section), except when, in ancestral estates, both are in the same degree of consanguinity to the ancestor.

If the brothers and sisters of the *whole*blood of the i ntestate could not take under the third clause, they would be nowhere specially provided for, and the effect would be to prefer brothers of the half-blood to the relict of the intestate, and to postpone the brothers of the whole blood to all classes, permitting them to come in only under the designation of “ next of kin^I at the bottom of the list.

Such was not the intention of the legislature. They intended, in the third and fifth clauses, to provide for *all*the brothers and sistfers of the intestate, both of the whole and half blood, and in the third clause, to prefer the brothers and sisters of the intestate of the whole blood, in every "case, to all the classes specified in the succeeding clauses.

The yords “ who may be of the blood of the ancestor *456from whom the estate came,” in the third clause, were used only to exclude from the operation of that clause, brothers and sisters of the half-blood of the intestate not of the blood of the ancestor, and they should be restricted to that use, and should not be made to defeat the manifest intention of the lawgiver.

IX. *We*mention the following as a few of the many absurdities and inconsistencies developed by an attempt to apply the first section, as construed by the defendants, to cases of this nature.

1. The children of the intestate are *first*in the order of preference, although in such a case they must necessarily be, not of the blood of the “ancestor,” but the issue of an earlier or later marriage. Yet defendants claim this estate on the theory that the brothers and sisters of the intestate are excluded from the operation of the third clause because not of the blood of the ancestor.

2. Notwithstanding the requirement of this section, that the estate of the intestate “ shall descend to his or her kindred,” the brothers and sisters of the ancestor are *second*in the order of preference in cases of this kind, although not of the blood of the intestate.

8. Notwithstanding the second section of the act prefers the *whole*to the half-blood of the intestate, and notwithstanding the brothers and sisters of the *whole*blood of the intestate are excluded because not of the blood of the ancestor, the brothers and sisters of the half-blood of the intestate *not of the blood of the ancestor*are *third*in the order of preference in cases of the nature of this.

4. *Fourth*in the order of preference in such cases (under the third section of the act), and preferred to the brothers and sisters of the whole blood of the intestate, is the relict of the intestate, successor to the “ ancestor” husband or wife, and *of the blood of neither ancestor nor intestate.*

5. Last in the order of preference are the “ next of kin” of the intestate not of the blood of the ancestor, under which designation the brothers and sisters of the whole blood of the intestate must take, if at all.

*457Many other absurdities might be specified. Are not these enough ? That interpretation of the statute should be preferred which will avoid such absurdities. “ The law-maker must be presumed to have intended to be consistent with himself throughout.” *State*v. *Blake,*2 Ohio St. 151.

X. The statutes of adoption are considered by the defendants’ counsel to have an important bearing on the question at issue. These statutes were discussed in *Brower*v. *Hunt,*18 Ohio St. 323, 341, 342.

The statutes of adoption make the adopted heir, in contemplation of law, -of the blood of the adopter. Descent from adopter to adopted is, in legal effect, descent by right of blood. No absurdity can arise in such a case that would not arise if the adopted heir were- in fact of the blood of the adopter. The effect of each clause of the statute is to be determined by considering who would take the estate if the adopted heir had been the child of his adopter, “ born in lawful wedlock.”

*J. S. White,*also for plaintiffs in error.

*Rufus King*and *S. J. Thompson,*for defendants:

I. The construction in *Hunt*v. *Brower,*18 Ohio St. 311, was upon the statute of 1857, and therefore not decisive of this case, which is governed by the amended acts of 1862 and 1865. S. & S. 304, 306.

The court, in holding that the first section of the act of 1857 did not apply to the case of a descent from husband to wife, seem to have been mainly influenced by the consideration that otherwise, under the terms of that act, all collateral relatives of the intestate would be disinherited, as not of the blood of the ancestor, and those of the ancestor would be excluded because not of kindred to the intestate. Thus escheats would happen, though numerous kindred on both sides might exist. To avoid this, the first section of that act was construed to apply only where the intestate had inherited the estate in right of blood.

But the amendments of 1862 and 1865, especially the former, have removed all difficulty. Ancestral estates are made inheritable, not only by any relative of the intestate, *458but by connections having no trace of the blood either of the ancestor or intestate.

II. The question, therefore, is open, whether the first section of the statute of descents, as modified by these changes, will not extend to any case in which the estate has come to the intestate by inheritance, whether in right of blood or not. We submit that such must be the construction, by reason of other legislation, *in pari materia.*The acts of April 29, 1854, and March 29, 1859 (1 S. & C. 509), providing respectively for “ designating an heir” and “adoption of children,” merely clothe these new classes of heirs with the legal capacity of children of the declarant or adopter. They do not confer any estate, or prescribe any inheritance or course of descent. As to all that, these, like other heirs, are remitted to the statute of descents. They simply fix the status of the designated heir or adopted child, as that of a child of the vicarious parent. “ The rules of inheritance, it is expressly provided, shall be the same as if so born.” Any estate, therefore, descending to such heir from such ancestor, must, in the event of his dying intestate and without issue, go back to the kindred of such ancestor, and not to the kindred of the blood of such intestate.

The decisive point is that this must be accomplished by and through the first section of the statute of descents. Whenever the case arises, this section must be applied to any estate thus descending to a designated or adopted heir who has died intestate and without children. And the ancestral principle will have to be enforced by wholly excluding the blood of the intestate.

How can it be maintained, then, that the terms of this section will not admit of being applied where the estate has descended otherwise than in right of blood, and that no one can inherit under its provisions unless of a common blood with both the intestate and the ancestor?

The postulate of the argument for plaintiffs is that there can be no inheritance under this section when there was no consanguinity between the ancestor and the intestate. But the statutes just referred to repel such a construction, show-*459mg that the legislature contemplated no such restriction. Nor is the argument answered by saying that these are special exceptions; for the question throughout, it must be observed, is only as to the capability or scope of the terms employed in the first section of the statute of descents. If they eaxi apply in the case of descents to a designated heir or adopted child having no community of blood with the ancestor, why not as well to a descent from. husband to wife ? The status of the latter, in the course of descents, is as clearly designated as that of the former; and as to the anomalous consequences supposed to follow from treating extraneous heirs as part of the common family, they are no more formidable as to husband and wife than in the inevitable case of adopted heirs. “ To avoid absurdities, we are to reflect that all rules of succession to estates are creatures of civil polity and jurisdiction merely.” 2 Black. Com. 211.

III. If consanguinity were the exclusive test, the husband or wife must be disinherited as to ancestral property in all cases where they are not relatives. Thus the wife’s relatives are here claiming to' succeed by a construction which would cut off the wife herself. It is said that the ease of husband or wife is made exceptional. But the statute does not so say. Nor can it be argued from the fact that they do not take an “ estate of inheritance ” these words in the text have no such purpose; They denote the subject-matter of the entire section, not the tenure or interest which either class, under it, takes.

IV. The theory that the estate cast by the statute upon the husband or wife is not a “ descent,” and therefore does not create, as between them, the relation of ancestor and heix*, assumes that there is no title by descent in Ohio, save by right of blood, but is not warranted by any statute or decision. It grows out of prepossessions bred by the familiar canon of the common law of England. But the Ohio system of descexxts is xxot of common-law origin, which is essentially feudal. *Cliver*v. *Sanders,*8 Ohio St. 501, 507; *Drake*v. *Rogers,*13 Ohio St. 21, 35. The differ*460ence is radical. “By the common law,” says Coke, “'he is only heir who succeeds by right of blood.” Co. Lit. 237a. But ours partakes more of the type and analogies of the Roman law, where the scheme of the family and of successions embraced all the relations of blood, marriage, and adoption.

At first, descents in Ohio were based exclusively upon blood relations; but in 1824 the intestate’s husband or wife was admitted as heir, if there were no surviving kindred of the blood, and in 1853 was advanced to a life estate if there were no child. In 1854, the designated’ heir was put upon equality with children. By the act of 1857, the husband or wife, if there was no child, took the entire estate when acquired by purchase, and a life estate in ascestral property. In 1859, the adopted child, like the designated heir, was let in, to the exclusion of all heirs by blood or marriage, except children; and now, by the act of 1862, connections merely nominal are incorporated into the course of descents and kindred.

Through all these changes the operative terms used in the statute have remained nearly the same as in the first act, passed in 1805. Unquestionably, so long as heirship consisted in consanguinity only, the words ancestor, descent, and kindred denoted that tie; but when new members, by marriage and adoption, were thus step by step in-grafted with blood relatives as heirs in a common stock and patrimony, the same terminology being preserved, is it not equally unquestionable that these words acquired a new and expanded sense? Nevertheless, the coincidence between heirship and blood, which was the work of legislation merely, is now insisted upon as though established by some law superior to all these changes.

Every estate which the law casts, immediately atthe death of the owner, upon another, is by *descent.*He who takes is *heir.*He from whom it passes is *ancestor. Brewster*v. *Benedict,*14 Ohio, 385; *Penn*v. *Cox,*16 Ohio, 30; *Curren v. Taylor,*19 Ohio, 36; *Prickett*v. *Parker,*3 Ohio St. 394. Judge Peck was constrained by these authorities to admit, *461in *Birney*v. *Wilson,*11 Ohio St. 426, that it had becomé “ the settled law of Ohio that the word ancestor, as used in our statutes of descent, means any one from whom the estate was inheritable by the intestate.”

*Little’s Lessee*v. *Lake,*8 Ohio, 290, has been construed as deciding that the estate derived by a wife from her husband, under the act of 1824, was non-ancestral. It does not appear that the point was raised. The decision was that the estate acquired by an illegimate son, who survived his mother, did not, upon his dying intestate and without issue, pass to his mother’s kindred, under the provisions of the statute respecting bastards. As there was no possible claimant on the ancestral side, the estate was awarded to the heirs of the wife, this being, as the court expressly said, “ the contingency upon which the *widow becomes heir.”*The inference that the court must have regarded it as non-ancestral is irreconcilable with this intimation. It is much more probable that literal effect was given to the broad phraseology in favor of “ brothers and sisters” of the intestate, in this act of 1824 — a peculiarity which continued until the act of 1865.

Nothing in the statute, nor in any parallel legislation, places inheritance by marriage upon any different footing from inheritance by blood or adoption. For all purposes of descent it treats marriage as. kinship, and contemplates all heirs, by whichsoever of these modes related, as of equal worth and excellence in their several degrees.

In this case, therefore, the estate descends from Asbury Young; as ancestor, to Eliza Young, as his heir, and under the express terms of the first section of the statue, ought to go to his brothers and sisters, who were her kindred in law, in this ancestral relation, no matter what absurdities might happen in some other remote case. Upon no principle consistent with the well-defined line between the first and second sections of this statute, can the brothers and sisters of the ancestor, from whom this estate descended to the intestate, be ousted by persons not of the ancestral blood.

*462V. It was declared in *Brewster*v. *Benedict,*and has ever since been steadily maintained, as the intent and policy of the Ohio system of descents, that as to property which came to the intestate in the regular course of descents, the blood of the ancestor was to be regarded, but the blood of the intestate as to that which he acquired by his industry. It is a policy about which there is no uncertainty, and founded upon a principle deeper than legislation. In obedience to a law of human nature, it confirms ancestral property to the family from which it came, or, as said by Swan, J., in *Cliver*v. *Sanders,*8 Ohio St. 508, “ the statute, in disposing of ancestral estates, would, as we think it has done, respect the natural wishes of the ancestor from whom the estate came, and devolve it upon the half-blood of the ancestor rather than upon strangers in blood.”

Under these clearly announced expositions of the statute, which has so long and steadily upheld the distinction between the course of ancestral and non-ancestral property, how can it be inferred that the legislature designed to create an anomaly in the case of a descent to husband or wife ?

*A. Taft*$■ *Sons,*also for defendants in error.

White, J.

The intestate in this case, Eliza Young, died after the passage of the act of March 4, 1865 (S. & S. 304, 305), amending sections one and two of the act regulating descents. From this fact the present case is claimed to be distinguishable from *Brower*v. *Hunt,*18 Ohio St. 311, the intestate in that case having died before the amendment was passed.

The first ground on which the cases are sought to be distinguished, is that the amendment of March 4, 1865, taken in connection with the third section, as amended April 16, 1862, justifies the giving of a different construction to the sections as amended from that adopted in *Brower*v. *Hunt.*

Hue consideration to the nature of the amendments shows such not to be the case.

The act of March 4,1865, amending sections one and two of the former act, was only intended to enlarge the classes of *463persons who might take the estate on the failure of those provided for by the original sections. The operation of the provisions of the original sections, as contained in the amending act, is the same as it was before the amendment was made.

Nor does section three, as amended April 16,1862 (S. & S. 306), affect the operation of the preceding sections one and two. Section three is only intended to provide for cases where there is a failure of persons capable of taking under the preceding *sections;*and the amendment of section three merely enlarges the class of persons entitled to the estate before it can escheat.

It is also contended that a different construction of the statute is warranted from that adopted in *Brower*v. *Hunt,*by reason of the acts of April 29, 1854, and March 29, 1859 (S. & C. 506), authorizing persons to designate an heir or adopt a child. This claim was pressed upon the attention of the court in the argument of *Brower*v. *Hunt,*and was overruled. These acts give to the adopted heir the legal status of a child of the adopter, born in lawful wedlock ; and the statute requires him to be regarded as such child, in tracing descent to or from him in the eases therein specified. But in cases which do not come within those acts, the operation of the statute of descents is the same as if such acts had not been passed.

The question for decision, therefore, in this ease, is not different from that decided in *Brower*v. *Hunt.*

¥e deem it unnecessary here to repeat the grounds or course of reasoning on which that decision rests. The decision did not turn on the generic meaning of the words “ ancestor ” and “ descent.” Nor was it held that there could be no descent excejDt in right of blood, nor that “ ancestor ” and “ heir ” were not correlative terms.

It is not a safe mode of juridical investigation to select terms or expressions from decisions, and assume that they have the same fixed and invariable meaning in all cases. Language is incapable of such precision. The meaning must be determined, in the particular instance, by the sub*464ject to which, the language relates and the connection in which it is used.

■ The proposition decided in *Brower*v. *Hunt*was that the terms “ ancestor ” and *“*descent,” as used in connection with the order of succession prescribed in the first section of our statute of descents, had reference to such estates only as descended to the intestate in right of blood, or which came to him by devise or deed of gift from one from whom he might have inherited the same in such right; and that where the estate came to the intestate otherwise, its descent from him is regulated by the second section of the act.

We still adhere to that decision. We find nothing in the elaborate arguments now submitted to j ustify our disturbing it.

Judgment reversed, demurrer to the petition overruled, and judgment to he entered for the plaintiffs.

MoIlvaine, C.J., Welch, Rex, and Gilmore, JJ., concurred.