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blood share the blood of only half the intestate's ancestors. parent is common to both, the other not. If the property came to the intestate through the common parent, then it cannot pass out of the blood of the ancestor by passing to both alike, and accordingly, the law ordains that it shall so pass. But if the property came from or through the ancestor not common to both, by passing to the half blood, it would pass out of the blood of the ancestor; this, accordingly, the law will not allow, unless in a contingency provided for under the third rule.

§ 162. Rule for other Specified Relatives. (a) If there be no heirs who can take under the preceding rules, ancestral property passes to the ancestor from whom it came, if he be living; if not, to the husband or wife of the intestate, if there be such, for life; if not, or at the end of such life-estate, to the children of such ancestor, or their issue, if any; (b) if not, to his brothers and sisters and their issue, if there be such; (c) if not, to the brothers and sisters of the half blood of the intestate not of the blood of the ancestor, if there be such; if not, to the "next of kin" of the intestate, being of the blood of the ancestor. And non-ancestral property, including personalty, ascends to the father, if living; if not, to the mother, if living; if not, it passes to the "next of kin." This rule, it will be seen, provides for the contingency before mentioned, where ancestral property, when neither the ancestor himself, nor any of his children, or brothers or sisters, or their issue, are living, passes out of the blood of the ancestor, by passing to the half blood of the intestate. The last part of this rule, which allows non-ancestral property to ascend to the parents, is an innovation upon the English law, under which property could never lineally ascend. Under this rule, the doctrine of representation terminates. It extends only to the lineal descendants, and the brothers and sisters of the intestate or the ancestor, as the case may be, and their descendants. Beyond these, therefore, the next of kin, who are living, take the whole, without regard to the representatives of any in the same degree who are dead.

§ 163. Rule for the next of Kin. The question now arises, who are the next of kin? The statute says, that if the specified persons cannot take, the next of kin shall. But who these are, it leaves to the common law to determine; and, as I have already mentioned, the common law of this country has adopted the rule

(a) For the legal meaning of the word "relatives," see Mahon v. Savage, 1 Sch. & Lef. 111; Bennet v. Hony wood, Ambler, 708; Harding v. Glyn, 1 Atkyns, 469; Spring v. Biles, 1 T. R. 435, note (f); Storer v. Wheatley, 1 Barr, 506; Williams v. Veach, 17 Ohio, 171.

(b) See note at end of chapter.

(e) The term brothers and sisters in the fifth clause of the first section includes the half blood. Cleirr v. Sanders, 8 Ohio St. 501. This fifth clause is not limited, like the fourth, to estates coming by gift from a living ancestor. So when an infant died seised of property which had descended from her grandfather to her father, and from him to her, it passed to the half brothers and sisters of her father, though not of the blood of the grandfather, rather than to the brothers and sisters of the grandfather. White v. White, 19 Ohio St. 531.

of the civil law. By this rule, the first degree of kindred embraces parents and children; the second, brothers and sisters, and grandparents and grandchildren; the third, great-grandparents, greatgrandchildren, uncles and aunts, and nephews and nieces, and so on, to the more remote degrees. But among these, the lineal descendants, the brothers and sisters and their descendants, the parents, and the brothers and sisters of the ancestor from whom the estate came, and their descendants, have been specifically provided for in the statute. Accordingly we have to seek for the next of kin among grandparents, great-grandparents, uncles and aunts, cousins, and so on, without regard to the doctrine of representation, but having regard to the distinction between property ancestral and non-ancestral; for if the property be ancestral, the next of kin must be of the blood of the ancestor; if not, of the blood of the intestate. I shall point out some of those whom the law would probably select. I say probably, because we have had no decisions on the subject. 1. Parents were the last persons expressly provided for. Next come the grandparents, who, being in the second degree, would be preferred to the uncles and aunts of the third degree. But though both grandparents are equally near of kin, and though in general there is no distinction of sex, yet, as the father has been expressly pointed out to take before the mother, by analogy, the grandfather will take before the grandmother, unless the estate came from or through her; in other words, they do not take together, as tenants in common. (a) 2. Next come the uncles and aunts of the intestate. If the property was ancestral, it will pass to the brothers and sisters of that parent from whom the estate came, under the third rule; so that our present inquiry is confined to the case where the property is non-ancestral. In this case, it will probably pass to the brothers and sisters of the father, in preference to those of the mother, from the analogy before mentioned, of fathers being preferred to mothers in the statute. 3. Greatgrandparents would come next. Indeed, they are in the same. degree as uncles and aunts, that is, the third. But they would probably be postponed to the latter, because the law dislikes lineal ascent when it can be avoided, -a prejudice which the statute exemplifies, by preferring more remote heirs to parents. However, this question, from the nature of things, can seldom arise. 4. Cousins would probably come next; for though grand-uncles and aunts are likewise in the fourth degree, yet from the preference to descent before ascent, the estate will sooner descend to the children of uncles and aunts, than ascend to the brothers and sisters of grandparents, unless the estate came from them; but as property rarely passes to degrees so remote, it would be unprofitable to pursue this inquiry further. 5. If there be no one of kin, real estate passes to the husband or wife of the intestate, if such there be; if not, it escheats to the State. It may seem singular, considering

(a) See Knapp v. Windsor, 6 Cushing, 156.

the closeness of the connection, that the husband or wife should be the most remote of all the heirs; and that they are only permitted to inherit to each other, when otherwise the property would escheat to the State; and in fact, I cannot conceive of a single argument in favor of such a doctrine; but such is the law, and it is not my province to vindicate it. (a) The propriety of the State taking property by escheat, when it has no other owner, is too obvious to need comment.

A brief recapitulation will serve to impress these rules the better on your memory. When heirs take by descent, they take as tenants in common. Posthumous children may inherit. Bastards can inherit and transmit inheritance from the mother. Children born before marriage and acknowledged after, and children born during a marriage void in law, are legitimate, and may inherit. Aliens can inherit and transmit inheritance. Actual seisin of the ancestor is not necessary. Males are not preferred to females, except in case of husband and wife. Descent per capita is where all the heirs in the same degree take alike. Descent per stirpes is where the heirs are of different degrees; and the children of those dead take together the shares of their deceased parents. It extends no further than to children and their issue, brothers and sisters and their issue, and the brothers and sisters of the ancestor from whom the estate came, and their issue. Ancestral property is realty which came to the intestate by descent or devise from a now dead ancestor, or by deed of actual gift from a living one; there being no other consideration than that of blood. Non-ancestral property is realty which came to the intestate in any other way, and personalty. Ancestral property passes as follows: 1 To the children and their issue, however remote. 2. To the brothers and sisters and their issue, however remote, whether of the half blood or the whole blood, provided they be of the blood of the ancestor. 3. To the ancestor, if living; if not, to the intestate's husband or wife for life; then to the ancestor's children, and their issue; then to his brothers and sisters, and their issue. 4. To the half brothers and sisters of the intestate and their issue, not of the blood of the ancestor. 5. To the next of kin to the intestate, being of the blood of the ancestor, determined by the rule of the civil law. 6. To the husband or wife. 7. To the State. Non-ancestral property, including personalty, descends as follows: 1. To the children and their issue, however remote. 2. To the intestate's husband or wife for life; then to the brothers and sisters of the whole blood, and their issue, however remote. (b) 3. To the brothers and sisters of the half blood and their issue, however remote. 4. To the father. 5. To the mother. 6. To the next of kin of the blood of the intestate. 7. To the husband or wife. 8. To the State. (c)

(a) But see note at end of chapter.

(b) Jenks v. Langdon, 21 Ohio St. 362.

(c) By the act of April 17, 1857, the husband or wife surviving, if there be no children, takes all personal property and non-ancestral realty; but in the case of ances

LECTURE XXX.

TITLE BY DEVISE. (a)

§ 164. Preliminary Explanations. The modes of acquiring title hitherto described, derive their effect from the operation of the law.

tral realty, the husband or wife surviving takes only a life-estate, if any of the rela tions of the blood of the ancestor specified in the text exist, and the fee of the property passes as therein described. By the amendment of April 16, 1862, if no such relations exist, it passes to the husband or wife as an estate of inheritances; if there is no such husband or wife, then to the next of kin not of the blood of the ancestor. And when there is no person entitled under these provisions, property, whether ancestral or not, passes to or vests in the children of any deceased husband or husbands, wife or wives, of the intestate, whose marriage has not been annulled prior to his, her, or their death, or their legal representatives; if no such children or their legal representatives, then to the brothers or sisters of such husband or wife, or their legal representatives; if no such brothers or sisters, or their legal representatives, then to the next of kin of such intestate; and if no such next of kin, then to the State. It will be noticed, that, under the law as stated in the text, the relict of the ancestor was entirely excluded, but by the amendment of March 4, 1865, she was inserted, if a parent of the intestate, next after the children of the ancestor and their representatives. The tables given in the recapitulation should therefore now be altered as follows:

Ancestral property passes as follows: 1. To the children and their issue, however remote. 2. To the husband or wife for life, then to the brothers and sisters of the intestate, whether of the whole or half blood, provided they be of the blood of the ancestor. 3. To the ancestor, if living; if not, to the ancestor's children or their issue; then to the husband or wife, relict of the ancestor, if a parent of the intes tate, for life; then to the brothers and sisters of the ancestor, or their legal representatives. 4. To the half brothers and sisters of the intestate and their issue, not of the blood of the ancestor. 5. To the next of kin of the intestate of the blood of the ancestor. 6. To the husband or wife of the intestate. 7. To the next of kin of the intestate, not of the blood of the ancestor. 8. To the children of the deceased husband or husbands, wife or wives, of the intestate, whose marriage was not annulled prior to death. 9. To the brothers and sisters of such husband or husbands, wife or wives. 10. To the next of kin of the intestate. 11. To the State.

Non-ancestral property, including personalty, descends as follows: 1. To the children and their issue, however remote. 2. To the husband or wife. 3. To the brothers and sisters of the whole blood and their issue, however remote. 4. To the brothers and sisters of the half blood and their issue, however remote. 5. To the father. 6. To the mother. 7. To the next of kin of the blood of the intestate. 8. To the children of deceased husband or husbands, wife or wives, of the intestate, whose marriage was not annulled prior to death. 9. To the brothers and sisters of such husband or husbands, wife or wives. 10. To the next of kin of the intestate. 11. To the State.

(a) See 2 Black. Com. ch. 23; 4 Kent, Com. lec. 67; 2 Hilliard's Dig. ch. 36; 6 Cruise's Dig. 1; Powell on Devises; Roper on Legacies; Toller on Executors; Jarman on Wills. Redfield on Wills; Hawkins on Wills. The English statute of wills devising lands dates back to the 32d of Henry 8th, explained by the 34th and 35th of that reign. This statute excepts married women, infants, and persons of unsound mind, from making a will, and corporations from taking by will. But in this State, a married woman could always make a will without the consent of her husband. Allen v. Little, 5 Ohio, 65. Nor is it necessary that the testator be actually seised of land at the time of making the will; for if he had possession under a parol contract of purchase, which was afterwards perfected, the land would pass by will. Smith v. Jones, 4 Ohio, 115. For an excellent synopsis of Ohio legislation with respect to wills, see Bailey v. Bailey, 8 Ohio, 239. See also Smith v. Berry, 8 Ohio, 365. By the wills act of 1852, it is provided, that, if the widow shall fail to make her election to take under the will, she shall retain her dower, and such share of the personalty as she would be entitled to in case her husband had died intestate. And this provision raises a serious question, whether, if there be no children, the widow may not take all the personalty, in spite of the will. But, by the amendatory act

That is to say, in the cases of occupancy, marriage, and descent, there is no express transfer or conveyance from the party who had title to the party who thereby acquires title. But in the remaining modes of acquiring title, there is an express transfer of title from one person to another. Title by devise is where a person, in anticipation of death, makes a disposition of his property by will testamentum. It was not until the year 1543, that real estate could be disposed of by will; for, as we have already seen, the holder of land, under the feudal system, was very far from being considered as the absolute owner; at present, however, subject to the claims of creditors, and of dower and curtesy, every person capable of acting for himself is free to dispose of his property by will to whomsoever he pleases. There is an idea prevailing among the more ignorant classes, that a father, in making a will, must give something, no matter how little, to each of his children, or the will will not be good; but this opinion is without foundation. A man may give his property to whomsoever he pleases, to the complete disherison of his children; and however unnatural and inhuman this may appear, it will not affect the validity of the will. Indeed, it may be laid down, as a general proposition, that all restraints upon alienation of property are in opposition to the prevailing spirit and policy of our institutions. When a person dies leaving a will or testament, he is called a testator. The property disposed of by will is called a bequest, legacy, or devise, and the persons who take it, legatees or devisees. The person appointed in the will to settle the estate is called executor. Wills are here chiefly regulated by statute, and I shall give a synopsis of its provisions.

Who may make a Will. In this State, any person of full age, and of sound mind and memory, (a) and not under any restraint, (b)

of March 10, 1860, if she fail to make her election to take under the will, she retains her dower, and such share of the personal estate of her husband as she would be entitled to by law, in case her husband had died intestate, leaving children. When the widow has once made her election, the judge of probate cannot set it aside on her application. She must apply to a court of equity. Davis v. Davis, 11 Ohio State, 386. Where a widow has actually taken under a will, and all parties have acquiesced, they may be estopped to deny her election to take under it. Thompson v. Hoop, 6 Ohio St. 480; Stockton v. Wooley, 20 Ohio St. 184.

(a) Mere defects of the senses, or of memory, or of extreme old age, do not, of themselves, render a person incapable of making a will. If a person can understand what he is doing, and how he is disposing of his property, he has sufficient capacity to make a will. Blecker v. Lynch, 1 Bradf. 458; Weir v. Fitzgerald, 2 Bradf. 42; Clarke v. Davis, 1 Redf. 249; Julke v. Adams, id. 454; Gaither v. Gaither, 20 Ga. 709; Sutton v. Sutton, 5 Harrington, 450; Stubbs v. Houston, 33 Ala. 555; Delafield v. Parish, 25 N. Y. 9. This last case is also published separately in full as "The Parish Will Case." St. Ledger's Appeal, 34 Conn. 434. Capacity is presumed until the contrary is shown. Perkins v. Perkins, 39 N. H. 163; Stubbs v. Houston, 33 Ala. 555; Landis v. Landis, 1 Grant's Cases, 248. But see Sutton v. Sadler, 3 C. B. (N. 8.) 87. That a person is under guardianship as a habitual drunkard, is primâ facie evidence of incompetency to make a will, but no more. Leckey v. Cunningham, 56 Penn. St. 370; Lewis v. Jones, 50 Barb. 645.

(b) Undue influence, to avoid a will, must be such as to impose a restraint upon the testator, in the disposition of his property in accordance with his own independent judgment and wishes. Monroe v. Barclay, 17 Ohio State, 302; Eckert v. Flowry, 43 Penn. State, 46; Clarke v. Davis, 1 Redf. 249; Julke v. Adams, id. 454; Norris v. Stokes, 21 Ga. 552; Dunlap v. Robinson, 28 Ala. 100. Turley's Ex'rs v. Johnson, 1

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