text:
    PORTIONS OF THE VALENTINE ANTI-TRUST LAW UNCONSTITUTIONAL.
    [Circuit Court of Delaware County.]
    Pearly W. Gage v. The State of Ohio.
    Decided, July 30, 1903.

      The Valentine Anti-Trust Law (93 O. L., 143) — Construction of — Constitutionality of — Criminal Provisions of — Sufficiency of Indictment Under — Effect of Plea of Guilty to an Insufficient Indictment —Sections 4, 5, 6 and 7 Unconstitutional.

    1. An indictment under the act of April 19th, 1898 (93 O. L., 143), charging that the accused, between two given dates, “was an active member of, acted with and in pursuance of, aided and assisted in carrying out the-purposes--of the; Delaware Goal Exchange, an association of persons organized for the purpose of preventing competition in the sale, and to maintain a uniform and graduated figure for the sale of coal, and to directly preclude a free and unrestricted competition among the members of said association, purchasers, and consumers in the sale and transportation of coal,” does not contain facts sufficient to constitute an offense against the laws of the state of Ohio.
    2. Sections 4, 5, 6 and 7 of said act are in violation of the Constitution of the State of Ohio, and of the Constitution of the United States, for the reason they create criminal offenses, prescribe proceedings thereunder, and provide penalties for the violation of any of the provisions of Section 1 of said act, by all combinations of capital, shill, or acts by two or more persons, firms, partnerships, corporations, or associations of persons, without regard to whether such combinations deprive individuals or the public of any legal right.
    3. A plea of guilty to an indictment which does not contain facts sufficient to constitute a crime, will not prevent a prosecution in error by the accused to have such judgment reversed.
    Voori-iees, J.; McCarty, J., and Winch, J., concur (the latter sitting in place of Judge Donahue).
    Error to the Court of Common Pleas, Delaware County, Ohio.
   Plaintiff in error was indicted under the act of April 19th, 1898 (93 O. L., 143), known as the Valentine Anti-trust Law.

To this indictment he demurred upon the grounds, first, that the facts therein stated do not constitute an offense against the laws of the state of Ohio; and, second, that the statutes under which said indictment was presented and returned are in violation of the Constitution of the State of Ohio, and of the Constitution of the United States.

The demurrer was overruled and plaintiff in error excepted. He then pleaded guilty to the indictment and filed his motion in arrest of judgment upon the same grounds stated in his demurrer. This motion was overruled and exceptions taken thereto. Plaintiff in error was then sentenced, to which he also excepted, as fully appears upon the record. Error is prosecuted to this court on the ground that the lower court erred in overruling the demurrer and motion in arrest of judgment.

The indictment charges that “on the first day of November, 1902, with force and arms, in said county of Delaware, and state of Ohio, and until this sixth day of January, 1903, said Pearly W. Gage, late of said county of Delaware, was an active member of, acted with and in pursuance of, aided and assisted in carrying out the purposes of the Delaware Coal' Exchange, an association of persons organized for the purpose of preventing competition in the sale, and to maintain a uniform and graduated figure for the sale of coal, and to directly preclude a free and unrestricted competition among the members of said association, purchasers and consumers in the sale and transportation of coal, contrary to the form of the statute in such case made and provided,” etc.

Testing the sufficiency of the indictment in this case on demurrer, it will aid materially to notice some facts that are not alleged or charged.

It is not alleged that plaintiff in error, or the association to which it is alleged he belonged, was engaged in the sale or transportation of coal; or that he, or said association, was in a position to influence or affect the price of coal to consumers, or that they attempted to do so. It is not alleged that the members of the association were not themselves the purchasers and consumers mentioned therein, and that they were not simply seeking to protect their own rights and interests in the purchase and transportation of coal.

It is not alleged that the association mentioned was not a partnership of which the plaintiff in error was a member, or that whatever agreement may have been made between them was not made between themselves as partners in the usual and ordinary methods in which partnerships are formed and their business carried on.

It is not alleged that' whatever agreement was made to prevent competition was not made in connection with the sale of the business of the individual members to the association, or for the purpose of protecting the good will of such business.

It is not alleged that' the association was formed solely for the purpose of preventing competition, or that that was its principal or primary object or purpose.

These facts not being alleged in the indictment, the indictment must stand on the facts stated, let the facts which are not stated be as they may; and facts not stated are, -therefore, to be assumed most strongly in favor of the accused and against the State, in determining the sufficiency of the indictment on demurrer.

We must consider the facts that are alleged in the indictment, regardless of those not alleged.

If the indictment is good, it is because any agreement between two or more persons, one of the purposes of which is to prevent any competition, constitutes a criminal offense under this act, without any regard to the relationship of the parties, or the circumstances under which it is made, or whether it does or does not injuriously affect the public or other individuals.

Literally construed, the statute makes it criminal for two or more persons, firms, partnerships, etc., to make or carry out any contract, obligation, or agreement, by which they combine or agree not to sell any article below a standard or common figure; to fix values and to keep the price of such articles at a fixed or graduated figure; to settle the price of any article between themselves, or between themselves and others; to exclude all free and unrestricted competition among themselves, or among themselves .and others, either in selling to or purchasing from others.

An agreement between -two or more persons forms a combination between them. By this act an agreement between two persons is made as criminal as an agreement between many persons without limit as to number. It’ is made criminal for two or more persons to combine as-partners, corporators, or-otherwise, in ordinary business affairs to increase or reduce the price -of commodities, or fix the standard thereof. It is made criminal for two or more persons to agree to limit or reduce the production of commodities, or to limit' competition, or to make any agreement in relation to the price of an article, so as to preclude free and unrestricted competition between themselves, or between themselves and others. It is made criminal for two or more* persons to create or carry out any restrictions in trade.

Under t'he literal reading of the statute all such agreements are made criminal, regardless as to whether such agreements work or caus,e injury to persons, or the public. In other words, it is made criminal for two or more persons to directly or indirectly unite their interests, connected with the sale or transportation of any commodity, whereby its price may in any manner be affected.

The statute would cover and make criminal a contract for the protection of the sale of the good-will of an established business, or that would -unite any interests which might in any manner affect the price of their commodities.

The common law does not' condemn all restrictions in trade, or all agreements to prevent competition, as illegal or contrary to public policy. Our Supreme Court, in the case of Lufkin Rule Co. v. Fringeli et al, 57 O. St., 596, held:

“All agreements in general restraint of trade are against public policy and void; but agreements having such partial effect only, made in connection with the purchase of a business and its goodwill, shown to be reasonably necessary to the enjoyment of the good-will of the business purchased, and not oppressive, may be enforced.”

Under our system of government, with its constitutional provisions everywhere in force, neither the legislative no-r the executive department thereof can fix the price at' which- any merchandise shall be sold for private use or consumption. To do so would be a taking of private property for private use. Private property can be taken for public use on making just compensation; but it can not be taken for private use on any terms.

It is hardly necessary to cit'e authorities on this proposition; however, a leading New York ease, Taylor v. Porter, 4 Hill, 140, 143, may be mentioned.

The right to combine, form partnerships and joint stock associations, and to agree as to prices and productions, to raise and lower prices, as the necessities of the times and conditions of business may require, are not against public policy, nor unjust' to the individual. This is an essential right, as part of the liberty of the citizen, of which no Legislature can deprive him.

Every crime involves, at least in its final consummation, the violation of some legal right, of some individual, or class of individuals, or the public. Some crimes, such as conspiracy, consists only in the initial stage of a violation of a legal right, which has not gone so far as an overt act. But no act constitutes a crime in its initial stage, unless that act, in its final consummation, constitutes a violation of some legal right' of some individual, or class of individuals, or the public. This principle is also fundamental. 4 Blackstone’s Com., p. 5.

Applying this principle to the statute under consideration, no agreement or combination of individuals can constitute a crime, unless the act complained of, when consummated, will deprive some individual, or class of individuals, of some legal right. In other words, there can be no legal injury to the public, unless there be a legal injury to some individual, or class of individuals, from the act which is the object of the agreement or combination,

The fault of the act under consideration is that it is too general. It makes no distinction between legal and illegal combinations and agreements which prevent competition, or are in restraint of trade. Contracts which have always been embraced in those inalienable rights essential to the liberty of the citizen are made criminal equally with those which the law has always condemned. Statutes prohibiting all contracts or agreements which prevent competition under all circumstances are infringements of the constitutional liberty of the citizen. All contracts which are in restraint of trade, or prevent competition, are not illegal. Lufkin Rule Co. v. Fringeli et al, supra.

In the case of Leslie v. Lollard, 110 N. Y., 519, the court say: mate to combine capital for all the mere purposes of trade for which capital may, apart from combination, be legitimately used in trade.”

“Competition is not always a public benefaction, for it may be carried on to such a degree as to be an evil. It is perfectly legiti-

If this right to combine exists, then the right to do ordinary business, such as fixing prices, changing prices, and to reasonably agree on production, etc., must of necessity follow; and all these things are only consonant with the constitutional liberty of the citizen.

This act of the Legislature does not stop at reasonable limits; it' is not content with making general restraint of trade, but it makes criminal all restraint of trade. It not only affixes penalties to acts or contracts which unreasonably restrict competition, but it condemns 'as criminal any agreement or arrangement which prevents competition between two or more persons entering into it. It not only prevents competitors from oppressing the public by unreasonable agreements as to production and prices, it also prevents persons associated in interest, joint owners and co-partners, from maldng any agreement about their production and prices. It not only prevents persons from using their capital, skill, and acts for the purpose of increasing prices, but for reducing prices as well. This destroys the reason of the enactment, and consequently the act is self-destructive.

The act in thus preventing and making it a penal offense for citizens of the United States to make valid contracts with respect to their business and property, and depriving them of the right of their property as well as liberty, is a violation of the Fourteenth Amendment to the Constitution of the United States.

That portion of the Fourteenth Amendment referred to is t'he latter part of Section 1, and is as follows:

“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of l'aw, or deny to any person, within its jurisdiction, the equal protection of the laws.”

The Constitution declares:

“This Constitution, and laws of the United States which shall be passed in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.”

In the ease of Dent v. West Virginia, 129 U. S., 124, the court, in speaking of due process of law and equality of citizens, said:

“The great purpose of the requirement is to exclude everything that is arbitrary or capricious in legislation affecting the rights of the citizen.”

In the case of Live Stock Dealers & Butchers’ Ass’n v. Crescent City Live Stock Landing & Slaughtering Co., 1 Abb. (U. S.), 399, the court said:

“No proposition is more firmly settled than that' it is one of the fundamental rights and privileges of every American citizen to adopt and follow such lawful and industrious pursuits, not injurious to the community, as he may see fit, without unreasonable regulation or molestation. There is no more sacred right to citizenship than the right to pursue any legal employment in a lawful manner. It is nothing more nor less than the sacred right of labor.”

Does it not necessarily follow that these constitutional privileges which protect the citizen in his life, liberty and property, secure to him the right to raise, produce and manufacture articles of general use; to buy and sell; to fix and limit the amount of any article which he will produce or manufacture; to increase or reduce the amount so produced or manufactured at his own will, within the limits of his ability; to fix and limit the price at which he will buy and sell; to bargain and agree with others upon prices, so far as it may be necessary in the business of buying and selling; in fact, to do anything and enter into all contracts usual and necessary in the ordinary avocation of production, manufacture and trade? Neither the state nor the National Legislature possesses any right to limit these natural privileges of contracting or conducting business. Any law which undertakes to abolish these rights, the exercise of which does not involve infringement upon the rights of others, or to limit the exercise thereof beyond what is necessary to provide for the public welfare and general security, can not be included in the police power o'f the government. Liberty in its broadest sense, as understood in this country, means the right not only of freedom from servitude, imprisonment or restraint, but the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation.

The principles hereinbefore stated are supported by the following authorities: People v. Marx, 99 N. Y., 377; Berthalf v. O’Rully, 74 N. Y., 515; People v. Gillson, 109 N. Y., 389; Toledo W. & W. Ry. Co. v. City of Jacksonville, 67 Ill., 37; Tiedeman on Limitation of Police Powers, 233; Registering Co. v. Sampson, L. R., 19 Eq., 462; Diamond Match Co. v. Roeler, 106 N. Y., 473; United States Chemical Co. v. Provident Chemical Co., 64 Fed. Rep., 946.; In re Grice, 79 Fed. Rep., 627.

The title of the act makes no distinction between oppressive and unreasonable combinations and those contracts and agreements made between two or more individuals, which have always been recognized and sustained at common law. There is no limitation in its sweeping provisions, or its consequences, in making criminal any violation of its terms. It embraces all contracts, such as sale of good-will not to engage in the same business; contracts between partners not to engage in a rival business, etc.

The Legislature can not, under the pretense of exercising the police power, or under any other claim or pretense, enact laws prohibiting harmless acts not concerning the health, safety or welfare of society, and the courts may examine into and annul such illegal legislation. Toledo W. & W. Ry. Co. v. City of Jacksonville, 67 Ill., 37; Tiedeman on Limitation of Police Powers, page 244.

The inalienable right of enjoying liberty and acquiring property, guaranteed by the first section of the Bill of Rights of the Constitution, embraces the right to be free in the enjoyment of our faculties, subject only to such restraints as are necessary for the common welfare.

Liberty to acquire property by contract, can be restrained by the General Assembly only so far as such restraint is for the common welfare and equal protection and benefit of the people, and such restraining statute must be of such a character that a court may see that it is for such general welfare, protection and benefit. The judgment of the General Assembly in such cases is not conclusive. Palmer et al v. Tingle, 55 O. St., 423.

And in State, ex rel, v. Buckeye Pipe Line Co., 61 O. S., 520, the court, in speaking with reference to the police power of the state, on page 548 say:

“In all considerate discussions of the subject, it is conceded that in the exercise of this power the Legislature can prohibit only those uses of property which are hurtful to the public, and the inhibited use must be hurtful in a legal sense.”

In view of these principles how should courts interpret statutes which make it an indictable offense for persons to combine to do acts injurious to trade or commerce?

We think that they should follow the common law and that line of authorities which holds with unvarying tenor that the essence of a crime is an injury, that is, the violation of some legal right, and which holds, especially as to the crime of conspiracy, that an agreement or combination to be criminal must contemplate the doing of some act that is unlawful, either as means or end; and, that the correct legal interpretation of the phrase, “an act injurious to trade or commerce,” is that it is an act which violates some legal right in connection with trade or commerce.

The Supreme Court in the case of The State, ex rel Monnett, v. The Buckeye Pipe Line Co., supra, while having under consideration the act of the Legislature here in question, limited-its holding strictly to cases then before the court, and did not undertake to decide whether the criminal provisions of the act were or were not constitutional.

The court, by Shauck, O'. J., on page 547 say:

“We are, therefore, to consider only those provisions of the act which are relevant to the cases before us. These cases are civil actions brought against independent corporations. The contract which we are asked to denounce is not incidental to the sale of property or any interest therein. It does not concern the goodwill of any business. It does not contemplate the formation of any corporation or other company for the carrying on of any business. In the subject of the contract the interests of the contracting parties are not adverse; they are not even diverse. The agreement, according to the allegations of the petition, has no purpose whatever except to prevent competition in the production, transportation and refining of petroleum, to the end that there may be received from the consumers of its products higher prices than would prevail under the condition of open competition.”

It is quite familiar doctrine that in determining the constitutional validity of statutes their different provisions are not necessarily subject to the same conclusion. Therefore, we are not concluded by this decision of our Supreme Court, so far as the question of the constitutionality of the criminal provisions of the act is concerned.

The question arises, whether the different criminal provisions, of the act are separable, so that a part may be held unconstitutional without affecting the validity of the remaining criminal provisions of the act? We think not. The rule that part of an act may fail and the remainder stand has very strict limitations when applied to penal acts.

The criminal provisions of this statute are so interdependent that they can not be separated except by judicial construction. This can not be done. U. S. v. Reese, 92 U. S., 214-221; Baldwin v. Franks, 120 U. S., 678.

To give effect to the rule permitting a separation of the different parts of a statute, that' which is constitutional and that which is ■unconstitutional must be capable of separation so that each may be read by itself. Baldwin v. Franks, supra.

In U. S. v. Reese, Waite, C. J., uses this language which is pertinent in the construction of the statute under consideration:

“It would certainly be dangerous if the Legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained 'and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.”

We therefore hold that the act under.which the indictment was found is unconstitutional and void so far as it creates criminal offenses, prescribes proceedings thereunder and provides penalties for its violation.

Aside from the constitutionality of this act the demurrer raises the further question as to the sufficiency of the facts stated in the indictment to charge an offense against the laws of the state of Ohio.

When we consider the facts alleged, as well as those not' alleged, in the indictment, it would be entirely consistent with the allegations of the indictment to assume that the association or combination complained of, of which plaintiff in error is alleged to be a member, may have had other purposes than that of preventing competition in the sale of coal, or to maintain a uniform and graduated figure for the sale of coal, or to directly preclude a free and unrestricted competition among its members, purchasers and consumers in the sale and transportation of coal. There is an entire absence of any allegation of conspiracy to do any of the acts complained of’ and of the committing of any overt act in furtherance of any scheme whereby the association, or any member thereof, received or might receive higher prices than would have been received under conditions of an open competition.

An indictment which only charges that' the plaintiff in error was an ‘active member of, acted with and in pursuance of, aided and assisted in carrying out the purposes of said coal exchange, an association of persons organized for the purpose of preventing competition in the sale, and to maintain a uniform and graduated figure for the sale of coal, and to directly preclude a free and unrestricted competition among the members of said association, purchasers and consumers in the sale and transportation of coal, without allegation of some overt act committed in furtherance of the alleged .purposes of said association, whereby some legal right of some individual, or class of individuals, or the public, is violated, is not sufficient under the laws of this state.

The Constitution of Ohio, Article I, Section 10, provides that “In any trial in any court, the party accused shall be allowed * * * to demand the nature and cause of the ‘accusation against him, and to have a copy thereof, to meet the witnesses face to face.” Trial in any other manner would not only violate this provision, but would not be “due process of law.”

The purposes of an indictment and the certainty of statement required therein, are fully stated in Fouts v. State, 8 O. S., 98, 114, in which the court said:

“If any one or more of the substantial ingredients or distinguishing constituents of the crime may be omitted, the written accusation required would become a mere snaTe by which to mislead and entrap the accused on his trial.”

Section 5 of the act under consideration' attempts to make an accusation sufficient which omits every specific statement which would tend to give the accused a knowledge of the nature and cause of the accusation against' him. The section provides that it is sufficient to state that the accused is a member of, acted with or in pursuance of, or aided or assisted in carrying out the purposes, of a trust or combination, without giving its name or description, op how, when and where it' was created. Everything which would identify the trust or combination may be omitted from the indictment with the consequence that the accused can have no knowledge of what he is to defend against.

George W. Carpenter, of Columbus, and H. W. Jewell, of Delaware, for plaintiff in error.

Edward T. Humes, Prosecuting Attorney, ánd E. M. Wickham, of Delaware, for defendant in error.

If any agreement can be made which restrains trade or prevents-competition without being a crime under the provisions of this act, the provisions of Section 5, which prescribe what the indictment may contain, are too uncertain because of the generality of it's terms. The indictment should allege the particular acts complained of, which distinguish the agreement or combination as criminal from those which are not criminal, and it is not within the power of the Legislature to dispense with these essential requisites of an indictment.

'We, therefore, hold that' the facts stated in the indictment do not constitute an offense against the laws of the State of Ohio.

Did the plaintiff.in error, by his plea of guilty, waive the right to object to the defects raised by his demurrer to the indictment? We think not.

A plea of guilty to an indictment which does not contain facts sufficient to constitute a crime, will not' prevent a prosecution in error by the accused to have such judgment reversed. Hogue v. State, 23 Cir. Ct., 567, 569; Davis v. State, 19 O. S., 270; Carper v. State, 27 O. St., 572, 575.

Our conclusion is that the demurrer to the indictment is well taken on both grounds and should have been sustained, and the court of common pleas erred in overruling the same, and in overruling the motion in- arrest of judgment. Eor these reasons the judgment is reversed with costs.


source: Caselaw Access Project

license: Public Domain

text:
    RIGHTS EXISTING UNDER A POLICY OF LIFE INSURANCE CONTAINING NO FORFEITURE CLAUSE.
    [Circuit Court of Lucas County.]
    Minnie Swander v. The Northern Central Life Insurance Company.
    Decided, June 13, 1903.

      Life Insurance — Overdue Premiums Accepted — No Forfeiture Clause —Suspension of Rights of Insured — Notice of Intention to Forfeit Policy.

    1. In a policy of life insurance, containing no clause of forfeiture and no provision for forfeiture, failure- to pay the premiums on or about the day when they become due may work a suspension of the rights of the party under the policy, until such a length of time has elapsed as will indicate that he does not intend to pay or has practically withdrawn; the company may then give notice to the insured of its intention to forfeit the policy.
    2. Whether a company has waived its right to suspend a policy by its habit of receiving premiums after they had become due is a question for the jury; but where a company month after month collects premiums after they have become due, and on the 14th of January collects the monthly premium which became due November 1st, and on the 25th of the same month attempts to collect the . premium which became due December 1st, and January 1st, but upon learning that the insured died on the preceding day refuses to accept the premium, and had given no notice to the insured of its intention to suspend or forfeit the policy, there is a very Strong showing that the company had waived the right to suspend or forfeit the policy for non-payment, and it is error to direct a verdict for the company.
    Hull, J. ; Haynes, J., and Parker, J.,"concur.
    Heard on error.
   This action was brought by the plaintiff, who was also- the plaintiff below, upon a certain life insurance policy issued for her benefit upon the life of her sister, Hattie Cappell, the first day of April, 1901, the premiums to be paid monthly in advance, the amount being eighty-eight cents per month. The premium for some months, •which was required by the policy to be paid on the first day of the month, was paid, but no premium falling due after the first day of November, 1901, was paid, and on the 24th day of 'January following, 1902, Mrs. Cappell, on whose life the policy was issued, died. On the 14th day of January preceding that, the premium up to the first day of November, 1901, was paid to and accepted by the company, and ten days later Mrs. Cappell, as stated, died. Payment of the policy was refused by the company on the ground that it had lapsed on account of default' in payment of premium, and action was brought 'by the beneficiary, Mrs. Minnie Swander.

At the conclusion of plaintiff’s testimony, upon motion of the defendant, the jury was directed to return a verdict in favor of the defendant on the ground that the policy had been forfeited and had lapsed on account of the non-payment of premiums as provided in the policy. Judgment was entered upon this verdict, and it was to reverse this judgment of the court of common pleas that a petition in error was filed here; and the question is, whether under the facts shown by the record in this case and under the contract of insurance that existed between the parties, the evidence offered by the plaintiff showed as a matter of law that the policy had been forfeited or had lapsed.

The plaintiff in her petition sets up certain things which she claims constituted a waiver on the part of the company to have the premiums paid on ’the first day of each and every month. It was shown in the evidence that after the first two or three months there were no premiums paid on the first' day of the month, but that they were paid at subsequent dates, and that no notice was given t'o Mrs. Swander that the policy was forfeited or had lapsed, and the last premium was accepted by the company on the 14th day of January, ten days before the death of Mrs. Cappell. And a question further arises as to whether, under the terms of this policy the insurance would become forfeited or lapsed by reason of the non-payment of the premium on the first day of each month.

A few general principles may be stated at the outset. Where a policy of insurance contains a clause of forfeiture by reason of the non-payment of premiums at a certain time, it is a valid part of the contract and the policy may «be forfeited unless prohibited by statute. The general rule, however, is, that clauses or provisions of forfeiture are to be construed strictly and are not to be encouraged by the courts. .As was said by our Supreme Court in 33 O. S., 459, forfeitures are odious and must be strictly construed; and there are other authorities to this effect. This policy does not contain any clause of forfeiture; it contains no such clause as is ordinarily inserted in insurance policies. It' provides:

“This contract is made in consideration of the application which is made a part hereof, and of the payment in advance t'o the company or its authorized representative of one month’s premium, $.88, due on date of issue of this policy and a like amount to be paid monthly thereafter during the continuance of this contract. * * * The company will not contest the payment of this policy except for fraud or non-payment of premium, provided that should death occur while engaged in military or naval service in time of war, without a permit, the liability of the company shall be limited to the net reserve on this policy computed according to-the legal standard of. the state of Ohio.”

That clause of the policy seems to recognize the fact that the non-payment of dues could be or might be a defense- to the payment of the policy. It provides further along that should this policy lapse after payments have been made for three full years then certain conditions would follow — not necessary to quote but showing that the policy does contemplate that it might' lapse under certain circumstances. The question in the case, of course, is to be considered in the light of the policy which we have before us, a policy which contains no clause of forfeiture.

Briefly as to the facts of the case. It appears from the oral testimony and as set down in the book which was given to the insured in which to have the payments of premiums recorded, that the first payment of eighty-eight cents, due April 1st, was paid and all of the other payments were made to the duly authorized collectors of the company, and one payment at least was made to the superintendent of the company. The second payment due May 1st, was paid' on the date it became due. The third payment, due June 1st, was not paid until June 15th. The payment due July 1st was not paid until July 6th; the next payment, due August 1st, was not paid until August 3d; the next payment, due September 1st, was not paid until the 23d of November, and the next payment, due October 1st, 1901, was not paid until January 14, 1902. The collectors called at the house-at various times to collect these premiums — mot always calling on the first of the month and sometimes calling two or three times during the month. In the fall some time, perhaps in November, one of the agents suggested to Mrs. Swander that she ought to pay up her premiums, or she might get no benefit out of the policy, but there was no statement made to her that the policy would be forfeited, nor did she understand that it would be forfeited on account of her being back in her payments. Her testimony on this subject is found on page 8 of the record, where she says that Mr. Tralour told her that she Would have to “catch it up” or it would not be of any benefit to ■her, and she told him that she would “catch it up” as quick as she could. This was the only conversation or communication, according to the evidence, she had on the subject with any representative of the company. The last payment was made on the 14th of January, but the agent came to her house to collect the balance due on premiums on-the 23 d of January. For some reason it was not paid then. She had the money to pay it and he promised to come the next day. He did not come the next day, but came the following day, the 25th, *and meanwhile on the 24th Mrs. Cappell had died. He came to the house on the 25th of January to collect the premiums then due for two months amounting to $1.76 and the evidence shows that plaintiff was prepared to pay and had the money to pay, but upon being informed that Mrs. Cappell was dead the agent declined to receive the money.

So it appears that these premiums were received from time to time after the first day of the month, without objection and without 'any notice to Mrs. Swander that her policy would be forfeited or lapse on account of non-payment on the exact day they became due, and collections were made, as stated, as far along as the 14th of January, 1902, and a visit made to the house to collect on the day after Mrs. Cappell died, and no attempt was made to forfeit the policy or to declare a forfeiture until after the death of Mrs. Cappell. In the book furnished by the company in which the payment of the premiums was recorded there is a printed notice to the insured which is significant and which indicates that it was not contemplated by the insurance company that these premiums in all cases should be paid on the day they were due. This is under the heading — “Notice to Policy Holders.” It says: “All premiums are due monthly in advance, and the company’s agent is instructed to call regularly to collect them, but his omission or neglect' to do so will not be any excuse lor non-payment. In cases of such omission or neglect, the premiums must be sent to the home office, Toledo, Ohio, stating the number of yoúr policy and the name of the collector.” So that although this recites that the failure of the agent to call will not be any excuse for not paying, it does not inform the policy holder that it will cause the policy to lapse, but does notify him that the premium is to be sent to the home office, and under such a notice the policy holder would be entitled to wait at least until the first day of the month had gone by before being required to send the -money to the home office, and the notice provides for payment in case the agent neglects to call on the first day of the month. And the part of the book, devoted to the recording of the premiums due the first day of the month, contains a heading providing for the recording. of the payment of the premium when it is not paid on the first of the month. One of headings is “Date when due,” and then- subheads are “Day of the Month” and “Year.” And then -another heading is. “Date when Paid” and under that again “Day of Month” and “Year.” So that the book which was furnished to- the -collector and left with the insured had in it provision for recording payments of premiums upon a date other than that on whicn they were due, and it would hardly be presumed that it was intended'to provide'for payments of premiums before they were due, but it provides clearly for the entering of payments after they were- due and to keep a record of the date when they were- due and of the date when actually paid and accepted by the company.

Now, considering these facts, was it efror for the court on -the conclusion of plaintiff’s evidence, to direct a verdict in favor of the defendant? We -are of opinion that' it was; that the evidence offered by the plaintiff did not show as a matter of law that this policy had been forfeited.

The policy, being drawn by the insurer, is to be construed most strongly against the insurer. As was said in Brink v. Merchants Ins, Co., 49 Vt., 457:

“It is a fundamental rule in the law of insurance that the policy shall be construed most strongly against the insurer and liberally in favor of the assured. ,, The policy is written by the insurers. They use their own language and surround and barricade their liability under it with such defenses as they chose to adopt.”

And in Yeaton v. Fry, 5 Cranch, 341, Chief Justice Marshall says:

“The words are the words of the insurer, and not of the insured.”

On the question of forfeiture clause our own Supreme Court has expressed itself several times to the effect that they should be construed strictly.

In 48 O. S., 533 (Blackwell v. Insurance Co.), at page 540, the court says:

“In this case, on page 10, Johnson, J., refers with approval and in the following language to the views on the subject contained on page 74 of May on Insurance: ‘Exceptions in a policy should be strictly construed, and where there are two interpretations equally fair, that which gives the greater indemnity should prevail.’ And on page 13 (27 Ohio St.) the same learned jurist says: ‘Stipulations in a contract providing for disabilities or forfeitures are to receive, when the intent is doubtful, a strict construction against those for whose benefit they are introduced.’ ”

And in the 53 Ohio St., at p. 558 (Webster v. Insurance Co.), the Supreme Court' say in the syllabus:

“Provisions for forfeitures are to receive, where the intent is doubtful, a strict construction against those -for whose benefit they are introduced.
“If it be left in doubt, in view of the terms of the instrument and the relation of the contracting parties, whether given words were used in an enlarged or a restricted sense, other things being equal, that construction will be adopted which is most' beneficial to the promissee.”

And in the 33 Ohio St., p. 459 (Union Central Life Ins. Co. v. Pottker), the Supreme Court say:

“Forfeitures are odious, and there must be no cast of management or trickery to entrap a party into a forfeiture.”

It must not be lost sight of that in this policy of insurance— a very unusual thing — there is no clause of forfeiture and no provision for forfeiture. We however are of opinion that under such a policy as this, if the premiums were not' paid on or about the date when due, that this would work a suspension at least of the policy and take from the party his right under it until he had paid what was due, and whether the company would be required to accept the payment at the time it was offered might depend somewhat upon the circumstances. It would be' unjust and inequitable to permit a party to go for a long time without paying his life insurance premium, even under such a policy as this, and when he was in bad health or on his death-bed to permit him to pay up and revive his insurance policy. The contract of insurance is of such a character that the success of the whole scheme depends upon each party, every policy holder paying his premiums and paying his dues. A company can not do business unless the dues are paid substantially as they become due, for the ability of the company to pay the losses as they accrue depends upon the policy holders paying their dues with reasonable promptness.

The question of the character of the contract of insurance is discussed very fully in two decisions of the Supreme Court of the United States, in 93 U. S. Rep., 24, and 104 U. S., 252. We think that under such a policy as this, where there is no clause of forfeiture, that a failure to pay would only work a suspension of the rights of the party under the policy until such a length of time had'gone by as would show that the party did not intend to pay and had practically withdrawn, and it would therefore be inequitable and unjust to permit him to pay and thus revive the policy. Sut, where there is no clause of forfeiture in the policy, before the policy can be forfeited, in our judgment, there should be some declaration to that effect on the part of the company 'and notice given to the insured, so that the insured may not allow a month, or two or three months to go by without any knowledge that this policy is to be forfeited, and finally after his death the beneficiary be deprived of the Benefits o-f the policy.

A case in point is found in 30 Ohio St., 240 (Insurance Co. v. French), where a policy of insurance provided for a forfeiture for non-payment of premium, and where a note was given for a portion of the premium and a cheek for the other part, the note containing the clause: “If not paid at maturity, said policy shall be null and void.” Neither note nor check was paid. It' was held by the court as stated in the first paragraph of the syllabus:

“The mere fact that the note was not paid at maturity did not of itself avoid the policy. It gave the insurance company the option of declaring a forfeiture, but this option must be asserted by clear and unequivocal acts. The clause of forfeiture being inserted in the note for the benefit of the company, may be waived by failure to act, or other circumstances evincing an intention not to claim the benefit of the stipulation. Whether the company has ■exercised such option or waived, their rights, is a question of fact for the jury under all the circumstances of the case.”

In this case the note which was given provided upon its face, or in the body of it, that if the note was not paid 'at maturity the policy was to be null and void; yet where such language as that was used the Supreme Court held that failure to pay the note when it became due would not of itself forfeit the policy, but it gave to the company the option to declare it forfeited, if it saw fit, but it might waive that; and whether the company had exercised such an option, or waived the right, was a question of fact for the jury. The whole question is very fully discussed in the opinion. The court say on p'age 247:

“It can not be successfully maintained that this clause makes the policy absolutely void'upon non-payment of the note.- Under the authorities such a clause, being introduced for the -benefit of the insurance company, means that the policy shall be void if the company insist upon it; but that it is their option to say whether this result shall follow or not.”

And they say on page 251:

“As far as we are able to discover, therefore, there was nothing done to inform Mr. French that his policy was void up to the 6th of July, 1868, when he went to arrange for the premium of that year, unless we take into account the statements of Simpson, which were left to the jury. We then can not consider that the company exercised their option to forfeit, and their failure to do so was a waiver of such forfeiture.”

And on page 252 the court' say:

“It appears to us that the disposition to prevent and guard against forfeitures of this kind is plainly evinced by the authorities.
“In The Georgia Mut. Life Ins. Co. v. Gibson, 52 Ga., 640, the case was this: Gibson had his life insured, but upon his death the company contended that he had not paid up his dues, and so the insurance had been forfeited. He died in 1870, but in the spring of that year he h'ad sent the insurance company $35.25 in payment of all his dues. The company retained the money till after his death without notifying him whether it was satisfactory or not. It was held that if the company received and retained the amount, this was a waiver of default. If the amount was not enough to pay past dues, it was the clear duty of the company to have promptly notified him. They should not have retained the money and remained silent till after the death.”

And, in quoting from another case, the court say:

“It is held that upon a non-payment of premium at the proper time the company have the right to declare a forfeiture; but if it failed to do so, it would be presumed that it chose to carry the risk, upon the responsibility of the party who had agreed to guarantee the payment. This case also holds that when a company has acknowledged in the policy the receipt of premiums, it will not be allowed to dispute such acknowledgment.”

And on page 254, the court quote from a Wisconsin case as follows :

“Forfeitures are not favored in the law, and will not be sustained upon mere inferences.”

In a North Carolina case (Woodfin v. Asheville Mut. Ins. Co., 6 Jones Law, 558), it was held that where there was fio clause of forfeiture the policy could not be forfeited for non-payment that it was an absolute contract and the company could only look to the personal responsibility of the party liable for the premium. This is the only case we have found where there was no clause of forfeiture in the policy. It was decided a great many years ago, by Chief Justice Pearson, when Judge Ruffin was upon the bench of that state and was one of the court. In the syllabus, the 'court say:

“Where, by a policy of insurance, the life of a slave was insured for five years absolutely, without requiring the payment of the annual installment as a condition of the defendant’s liability, it was held that the insurance money for a loss was not forfeited by a failure to pay such installment.”

In the opinion, Chief Justice Pearson says:

“Upon the point that the policy was forfeited by reason of a failure on the part of the plaintiff to pay the annual installment, this court is of opinion with the plaintiff irrespective of the question of notice. The policy contains no condition by which it is to be void if such payment is not made, but insures the life of the slave for five years, absolutely, in this respect — leaving the annual payment of $12.24 to be enforced, not as a condition, but as a part of the consideration.”

Nor does this policy that is before us contain any condition that if the payment of premium is not 'made when due that this policy was to become void and cease and determine. There are some expressions in the policy which, it has been urged, indicate that nonpayment of dues might be regarded as a forfeiture of the policy and that the policy might, under certain circumstances, lapse; but there is no express provision of forfeiture, and in view of the authorities holding that where there is a provision of absolute forfeiture it is to be construed strictly in favor of the insured, and may be waived by the insurance company by its conduct, it would seem as though a court' ought not to import into an insurance policy a clause of forfeiture which does not in fact there exist. But, as we have said, a contract of insurance is of such a peculiar character — whether it is a mutual company or a stock company —it being always to some extent a mutual arrangement, each person in the company depending on all the others paying their dues, it would be unjust and inequitable to permit a person to make his first payment on an insurance policy which contains no clause of forfeiture, and permit him to have the benefit of an insurance contract for the remainder of his life without making any payments of premiums for the benefit of the company or for the benefit of the others who are insured; and we are of the opinion that if a party under such a contract as this does not pay on or about the date the premium is due, unless this is waived the just and true rule would be that' the rights of the party would be suspended and the policy would be suspended until the premium is paid; we think' it is necessary to protect the rights of all the parties that such should be the law, but not that the insured should forfeit all of his rights under the policy without any provision for it' in the contract.

Upon this question of suspension of the policy under these circumstances, May on Insurance, 3d Ed., Secs. 343 and 344, is somewhat in point. The author says:

“If, however, the policy contains no such proviso, though the charter and by-laws require the payment of annual premiums, the non-payment of the annual premium when due does not work a forfeiture. Such a policy insures for the number of years stipulated absolutelyj leaving the annual payment of the premium to be enforced, not as a condition, but as a part of the consideration agreed to be paid. So if the policy is merely suspended while a premium or installment remains unpaid, a payment, even though upon a judgment recovered in a suit therefor, will revive the policy. But a part payment will not remove the suspension. Where a policy is to be void by non-payment' of 'a premium, yet capable of revival by subsequent payment, the company is not liable for loss occurring after default and before revivor, nor does it earn premiums during the period of suspension.”

There are very few cases, upon such policies, because it is very unusual that a forfeiture clause is omitted, and the question seems to have seldom arisen.

The question still remains whether the conduct of the insurance company was such that it had waived a suspension of the policy or the rights and benefits under the policy on account of the premiums not' being paid when due. That is a question of fact for the jury. Upon the subject of waiver I will cite 52 Missouri, p. 469 (Thompson v. St. L. Mut. Life Ins. Co.):

“Though a contract of insurance requires prompt payment of the premium or the policy will be' forfeited, yet the insurers may waive this condition by a habit of receiving the premium after it is due.”

In this case, on pages 472-3, the court say:

“In contracts of insurance, as in other contracts, the parties may make the.time of the performance of any stipulation of the very essence of the contract. In such'-case the contract becomes utterly at an end, or void, as soon as the default is made. The stipulations in regard to the time of the payment of the premiums in this policy I do not regard as of the essence of the contract. It was not so regarded by the parties themselves. By their acts and conduct the parties have construed this contract for themselves. It was not regarded by either party as of the essence of this policy, that the premiums should be paid at the very day they became due.
“The memorandum at the foot of the policy did not give any additional force to the stipulation in the policy, if we may consider it as having any effect whatever. If it had any force it seemed to be lo'oked upon by the parties as a license or invitation to the plaintiff to disregard the exact day of payment and to rely upon the courtesy of the company. The plaintiff pursued this course, 'and instead of making his payments on the very day when due, let them lie over for a short' time, and still they were received without objection.
. “The plaintiff was thus induced to believe, that a failure of strict payment on the day would not prejudice his rights.
“The courts have become more liberal in their construction of those sort of stipulations in policies of insurance; formerly it was held that when in a fire insurance policy it was required that' additional insurance could not be taken without first obtaining the consent in writing of the -company, to be indorsed upon the policy, it would become void if such consent was not in every case so indorsed. It was not sufficient to give notice of the additional insurance and rely upon the company’s verbal consent thereto.
“The old rule required the consent to be in writing and indorsed upon the policy, but' 'it is now understood to be the settled law of this state, that if notice be given to the company of the additional insurance and no objection is made, the company will be estopped from insisting on a forfeiture of the policy, because their consent thereto was not indorsed as required by the literal stipulation therein.
“So in regard to the payment of premiums, it seems to be well settled that the practice of the company in accepting the same without objection after the day stipulated for the,payment, must be treated as a waiver of the exact time as an essential ingredient of the contract.”

Upon the general law of insurance and questions of waiver and claims of forfeiture, without quoting from them, the following cases are cited: 30 S. E., 918; 37 Southeastern, 95; 18 Barbour, 541; 26 Barbour, 536; 65 Mo., 916; 159 Ill., 476; 93 U. S., 24: 104 U. S.. 352.

It is laid down by the Supreme Court of the United States in the two cases last cited that the payment of premium is not a condition precedent, but is a condition subsequent; that the theory that the premium paid by the month or by the year pays for.the insurance for' that month or year, is not correct; that the contract is an entirety, if if be a life insurance policy, to insure the party for -his life and the premium is payable in installments.

Under the facts in this case as disclosed, by the record — no evidence being offered by the defense — it would seem as though a very strong showing had been made that the company had waived the payment of the premiums upon the first day of each month by receiving the payment's, month after month, after they had become due; by receiving the payment due in November in the middle of January; in giving to the party a book with the blanks contained therein .to which I have referred; by notifying the party that if the agent did not come on the first day of the month to bring the premium to the company; by reason of the fact that no notice had been given to the insured that her policy had' been forfeited or suspended or had lapsed, and no direct notice that it would be forfeited or suspended if she did not pay, and by making the collection on the 14th day of January — ten days before death— and by promising to come on a subsequent day and collect the balance that was due, and by actually coming before the death of Mrs. Cappell for the purpose of collecting it on the 23d of January, and by coming again on the 25th of January, after her death, for the purpose of collecting the premium then due. In all this we have a very strong showing made that the company had in fact waived its right to suspend the policy for non-payment.

The policy of the law is against forfeitures; the equitable and just doctrine is that if a party gets all that is coming to him, all that is due to him, although it may be a short time after due, he should not be permitted to forfeit all the rights of the other party, especially if by his conduct he may be deemed to have waived the right t'o declare such a forfeiture.

We think that in this ease the common pleas court erred in directing the jury to return a verdict in favor of the insurance company; all the evidence should have been heard; the defendant given an opportunity to make its defense and then the case should have gone to the jury under proper instructions from the court. Therefore, the judgment of the court of common pleas will be reversed.

A. T. Gourley, for plaintiff in error.

22. W. Kirhley and E. W. Toler ton, for defendant in error.


text:
    HEIRS OF THE HALF-BLOOD NOT NEXT OF KIN UNDER. PARAGRAPH 6 OF SECTION 4159.
    [Circuit Court of Morrow County.]
    Marvin B. Lyon et al v. Mary Lyon et al.
    Decided, December Term, 1902.

      Statutes of Descent — Ordinance of 1787 — Section 4159, Paragraph 6— The Phrase “Next of Kin” Construed.

    1. The third and fourth paragraphs of Section 4159, R. S., control the sixth paragraph.
    2. The proper construction, therefore, to be placed upon the sixth paragraph is, that heirs of the half-blood are excluded, and the estate goes to those of the whole blood.
    Counsel for the plaintiffs cited:

      Clayton v. Drake, 17 O. S., 367; Oliver v. Sanders, 8 O. S., 501; Ordinance of 1787, at p. 3646, Bates’ Rev. St'at.'; Constitution of 1802, Sec. 4, Art. VIII, of schedule; Constitution of 1851, See. 1, Art. X, of schedule; and Cass v. Dillon, 2 O. S., 607.
    Counsel for the defendants cited:
    19 0., 36 ; Stembel v. Martin, 50 O. S.,' 495; Brewster v. Benedict, 14 O., 385; Prickett v. Parker, 3 O. S., 394, and the distinction between “next of kin” under Section 4158 and “next of kin” under Section 4159.
    Donahue, J.; Douglass, J., and Voorhees, J., concur.
   This is an action brought to partition certain real estate of which Andrew L. French died seized and intestate. The agreements of counsel are that eighty acres of this land were inherited by.Andrew L. French from his father, Louis French; that seven and one-half acres were inherited by him from his mother, Sener French; that eighty-seven and one-half acres were inherited by him from his sister, Emeline French; that two hundred and fifty acres were acquired by purchase.

It is further agreed that the eighty acres inherited from the father, goes to the next of kin of the blood of the father; that the seven and one-half acres inherited from the mother goes to the next of kin of the blood of the mother, whether they be of the whole or half blood. It is also further agreed that the eighty-seven and one-half acres inherited from the sister goes to the next of kin of the blood of Emeline, as claimed in the petition .and in the proportions therein stated.

The question submitted to ns is, as to the descent of the title to the two hundred and fifty acres; and in reference to this, it is further conceded that this estate passes under paragraph six of .Section 4159, Eev. Stat., and the sole and 033ly question for ns to determine is, who are the next of kin under this paragraph of ■the statute.

It is contended, on the one hand, that children of the brother of the whole blood of the father take to the exclusion of children of the brothers of the half blood of the mother. On the other side, it is contended that children of brothers of the half blood of the mother take in equal proportion to children of the brother of the whole blood of the father. This is the sole question submitted to ns for consideration. The fact that one set of heirs claim through the mother, the other through the father has nothing to do with the question. It is the same as if the children of the brother of the whole blood of the father and the children of the 'brothers of the half-blood of the father were claiming this inheritance ; so then the question is fairly presented as to whether under paragraph six of Section 4159, Rev. Stat., the whole blood is preferred to the half-blood. Counsel have very fully and fairly presented this question to us and aided us largely in onr investigation.

To determine this question, we must look not only to the legisi lation but also to the history of descent, both under the common law or canons of descent and the civil law, for one of these will obtain unless the statute in express words, or by fair implication, abrogates both and gives a new rule for determining the next of kin.

The common law and 'the civil law agreed in rules of descent in lineal heirs in the descending lines, but when the descending lines were exhausted, then the common and civil law parted company.

•The common law, to meet the needs and purposes and intention of the feudal system, then sought next of kin among collateral kinsmen, -upon the theory that the inheritance should rest in a younger and stronger individual more capable of service to his feudal lord than would be the aged ancestor in the lineal ascending lines; therefore the kinship was reckoned from the intestate directly in collateral lines; and the natural and necessary result' was to- exclude the half-blood when there were brothers of the whole blood, because the whole blood, were necessarily nearer of kin to the intestate than the half-blood.

The civil law reckoned on lineal lines only, going hack to a common ancestor and then down to Ms nearest kinsman, so that if the half-blood and whole blood were all children of that ancestor, they stood in equal relation to the ancestor; and as the inheritance came not direct from the intestate but through the ancestor, only the kinship to the ancestor was important and the natural result of -this rule was to make the whole and half-blood equal in the line of succession. Therefore, it is apparent that if the civil law obtains here the whole and half-blood stand equal. If the common law, the whole blood takes to the exclusion of the half-blood.

Section 2 of the ordinance of 1787, provides!

“That the estates both of resident and non-resident proprietors in the said territory, dying intestate, shall descend to, and be distributed among, their children and the descendants of a deceased child in equal parts, the descendants of a deceased child or grandchild to take the share of their deceased parent in equal parts among them.; and where there shall be no children or descendants, then in equal parts to the next of kin, in equal degree; and among collaterals, the children of a deceased brother or sister of the intestate shall have, in equal parts among them, their deceased parent’s share; and there shall in no case, be a distinction between kindred of the whole and half-blood.”

That was the first legislation that affected real estate in this state upon the question of descent. The Constitution, or I should say, both Constitutions of Ohio, left this law in force.

The Constitution of 1802, Section 4 of the schedule, reads:

“All laws, and ports of laws, now in force in this territory, not inconsistent with this Constitution, shall continue and remain in full effect, until repealed by the Legislature, except' so much of the act, entitled ‘an act regulating the admission and practice of attorneys and counselors at law,’ and of the act made amendatory thereto, as relates to the term of time which the applicant shall have studied law, his residence within the territory, and the' term of time which he shall have practiced as an attorney at law, before he can be admitted to the degree of a counselor at law.”

Turning to Section 1 of the schedule of the Constitution of 1851:

“All laws of this state, in force on the first day of September one thousand eight hundred and fifty-one, not inconsistent with this Constitution, shall continue in force until 'amended, or repealed.”

So that unless the statute does amend or repeal, or in some way change the course of descent,, this part of the ordinance of 1787 is still in force; and the whole and half-blood stand equal, as by the Tule of the civil law.

Our next inquiry is, as to whether this rule is changed by statute. We have in this Section 4159, Rev. Stat'., what is known as the statute of descent of non-aneestral estates. That provides:

“First. To the children of the intestate and their legal representatives.
“Second. If there are no children, or their legal representatives, the estate shall pass to and be vested in the husband or wife, relict of such intestate.
“Third. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate of the whole blood, and their legal representatives.
“Fourth. If there are no brothers or sisters of the intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half-blood, and their legal representatives.”

It is evident, so far as the classes named in the third and fourth paragraphs of this section are concerned, the ordinance of 1787 is repealed. This, in effect', excludes the half-blood, and gives the estate to the whole blood, to the exclusion of the half-blood.

The sixth provision of this statute is as follows:

“If the father and mother are dead, the estate shall pass to t'he next' of kin, and their legal representatives, to and of the blood of the intestate.”

The question arises, whether the third and fourth paragraphs of this section control the sixth, or whether the sixth paragraph of this section stands alone and unaffected by the provisions of the third and fourth.

The case of Stembel v. Martin, 50 Ohio St., p. 495, gives us some advice as to the opinion of the Supreme Court upon this question. It does not construe this statute, but it construes Section 4162, Rev. Stat., and that provides for the descent of the estate after the death of the husband or wife, where the survivor has not disposed of the estate during his lifetime.

The Supreme Court, in disposing of this section, say this is not an independent section as it appears from the Revised Statutes of Ohio, but' that it is 'a supplemental section to this other section of descent and distribution, and that it is controlled by the rules laid down in those sections; that the only effect of the supplemental section is to divide t'he estate and send it back to be distributed under the rules given in the section just referred to.

We can not understand why, if this supplemental section is controlled by the provisions of the third and fourth paragraphs of this section first referred to, the paragraph of the same section should not so be controlled.

It seems to us .the conclusion is irresistible, that if the Supreme Court hold a supplemental section is controlled by paragraphs three and four, it must also hold that' the sixth paragraph of the same section is controlled thereby.

There is an instructive ease in Curran v. Taylor, 19 Ohio, 36, 39. In -discussing this the court say:

“The argument is pressed with earnestness, that the civil law should govern, and not the common law, in determining who is the next of kin intended in this clause, and that in accordance with the better feelings of our nature, the grandfather is regarded as a nearer relative than uncles or aunts.
“It has been the settled policy of the state, in its laws of descent, to direct the property of a deceased brother to pass to the brothers and sisters who survive him, to hold them in this respect, as nearer than the father, or at all events to prefer them to the father, even in a ease where all the property had come by gift directly from him. If George Arter, the son, had .died without a child, the estate now in controversy, would, under the statute we are now considering, have passed to his brothers and sisters, and not to his father. Now it' is difficult to understand why this law should be suffered to remain in force here, where statutes are so easily, and in point of fact, so frequently subjected to alteration and repeal, if there be in reality any general sentiment or feeling opposed to this principle of descent. In putting a construction upon the statute or-upon parts of it, we, as a court, at least, would feel ourselves called upon to give some attention to the principle so recognized in the law of descents. If, then, this estate would have been properly' settled upon the brothers and sisters of George Arter, senior, had he died without children, we can not see a sufficient reason for diverting it from that course, because it has chanced to rest for a time in his infant son. We think that by a proper interpretation of the statute in question, the brothers and sisters of the intestate’s father, and not the grandfather, should take the inheritance.”

So we think that the rule of descent fixéd by our statutes and the whole tendency -of legislation upon that subject, is to exclude the h'alf-blood and to give the estate to the whole blood.

Suppose, for instance, to show the analogy between this case I just' read from and the case at bar: That this father had the property; that he died seized of this property, not the son, Andrew L., but Lucius died seized of this property, and he failed for heirs in the lineal line. The statutes- would not send it back to the father, but it would send it to his brothers of the whole blood. If the father had died seized, then the statutes of the state would send it to his brothers of the whole blood.

Harlan & Wood, for plaintiffs.

L. K. Powell, for defendants.

It is further said in the case of Curran v. Taylor, supra:

“There is no theory, no reason for saying, that because the child held for a while, that it should go through any different course of descent -than the one it naturally had followed had the child never been born and lived to inherit through the father.”

We think there is a direct parallel between that ease and the one we have here. We think the statutes of descent in Ohio intend to give to the whole blood to the exclusion of the half-blood in cases of this kind. We think that if this estate came back to this father or to the mother, and the father or mother held -for ever so short' a time, if they lived just long enough to arrest the ti-t'le in themselves after the death of the son, it would have gone to the brothers of the whole blood, and there is no reason it should not' go to the same heirs that it would have gone to if they had lived long enough to arrest the title.

That being our conclusion, the heirs of the half-blood will be excluded from the 250. acres, and as to the other land sought to be partitioned a decree may be entered according to the agreement of counsel.