author: Williams, J. MinsharrJ.

text:
    Stembel et al. v. Martin et al. Stone et al. v. Doster et al.

      Descent and distribution—Non-ancestral real or personal property-— How descends, where husband or wife dies intestate, and without issue—How descends, upon death of relict, intestate and without issue—Sections 4159 and 416%, Revised Statutes, constrtted— Whole and half blood.

    1. Where a husband or wife dies intestate and without issue, seized of non-ancestral real estate, or personal property, it descends to the relict of such husband or wife, under section 4159, of the Revised Statutes; and such property so descended, under section 2 of the act of April 17,1857 (S. & C. 501), and amendments thereto, when the supplemental act of April 11, 1877 (Vol. 74, Ohio Daws, 81), was adopted.
    '2. Upon the death of the relict without issue and intestate, seized of the property, it descends, under section 4162, of the Revised Statutes, one-half to the brothers and sisters of the whole blood of the former deceased husband or wife, or their representatives, if there be such, and if not, then to those of the half blood, and their representatives, and the other half .to the brothers and sisters of the deceased relict, and their representatives, in the like order. And such property has descended in the same way, since the passage of the supplemental act of April 11, 1877.
    3. The descent of real estate is controlled by the legal title. When the legal and equitable title unite in the same person, the latter is merged in the former, and the whole estate descends according to the course of the legal title.
    (Decided June 23, 1893.)

      The case of Stembel et al. v. Martin et al., is on error to the Circuit Court of Franklin county, and that of Stone et al. v. Doster et al., is on error to the Circuit Court of Cuyahoga county.
    The cases were argued and submitted together, and will be reported together.
    A statement of the facts of each case, so far as they are necessary to a proper understanding of the questions presented, will be found in the opinion.

      Harrison, Olds & Henderson, for plaintiffs in error, in the Stembel case.
    The words, “brothers and sisters,” include “brothers and sisters of the half blood,” as well as “brothers and sisters of the whole blood,” and “whether such brothers and sisters be of the whole or half blood.” Such is their import in common parlance. Such is their legal signification generally, and in statutes regulating descents and distribution. Such is their signification as used, from away back, in the statutes of Ohio. Such is their construction as settled by the Supreme Court of this state in repeated decisions before the act of April 11, 1877, was passed. Such is their construction, as used in said act of April 11, 1877. Grieves v. Rawley, 10 Hare, 63; Gardners. Collins, 3 Mason, 398, 404; Clark v. Sprague, 6 Blackf., 412; Bouvier’s Raw Dictionary; Hawkins on Wills, star page 86; 2 Jarman on Wills, 700, star page 154; Beebee v. Griffing, 14 N. Y., 235; Clay v. Cousins, 1 T. B. Monroe, 75; Crooke v. Watt, 2 Vern., 124; Tracy v. Smith, 2 Rev., 173; Sheffield v. Lovering, 12 Mass., 490; Rowley v. Stray, 32 Mich., 72; Gardner v. Collins, 2 Pet., 58; Naker v. Chalfant, 5 Whart., 477; Schull v. Johnson, 2 Jones Eq., 202; Luce v. Harris, 79 Penn. St., 432; Wood v. Mitchell, 61 How. Pr. Rep., 48; State v. Wyman, 59 Vt., 527; Tomlin’s Raw Dictionary; Blackstone, star page 505; 2 Kent’s Com., star page 422; Clayton v. Drake, 17 Ohio St., 372; 1 Woerner’s American Raw of Administration, 131; Cliver v. Sanders et al, 8 Ohio St., 501; White v. White, 19 Ohio St., 531.

      These same words, “brothers and* sisters,” without further limitation, next appear in said act of April 11, 1877, which became section 4162, Revised Statutes.
    There is a strong presumption that the same words or phrases are used in the same sense, where they are employed in different parts of the same enactment, or in an original act and acts amendatory thereof or supplementary thereto, or even in different enactments in pari materia. When dealing at different times, with the same subject, it is reasonable to suppose that the legislature uses the same words in the same sense. Rhodes v. Weldy, 46 Ohio St., 234; Raymond v. Cleveland, 42 Ohio St., 529; Courtland v. Leigh, Raw Rep. (4 Ex.), 130; Robbins v. Railroad Co., 32 Cal., 472.
    It is well settled that the legislature is presumed to know the construction which has been put by judicial authority on a former statute relating to the same subject, and that every statute is presumed to have been penned and enacted by persons familiar with the preceding legislation in pari ‘materia, and with all judicial interpretation given by the courts to words used therein, and with the rules of construction. Endlich on Interpretation of Statutes, sections 367, 370; Bishop on Written Raw, sections 73, 75; Turney v. Yeoman, 14 Ohio St., 218; Gorgan v. Garrison, 27 Ohio St., 63; Johnson v. Johnson, 31 Ohio St., 133; Sheffield v. Lovering, 12 Mass., 490, 494; Beebee v. Griffing, 14 N. Y., 235, 243; Mason v. Fearson, 9 How. U. S., 258; The Abbotsford, 98 U. S., 440; Claflin v. Insurance Co., 110 U. S., 81; Interstate Com. Comm’rs v. Railroad, 145 U. S., 264; Ex parte Campbell, Raw Rep. (5 Ch. App.), 706; Rhodes v. Airdale Comnirs, Law Rep. (1 C. P. D.), 391; Ruckmaboge v. Mattechund, 31 English R. & Eq., (Privy Council) 85; Clark v. Wallond, 52 L. J. Q. B. Div., 322; Ex parte Attwater, L. R. (5 Ch. Div.), 27..
    In drafting the act of April 11,' 1877, supplementary to the “ act regulating descents and the distribution of personal estates,” the lawmakers had before them, and referred to, the latter act. In it, they found the words and phrases “brothers' and sisters of the whole blood,” “brothers and sisters of the half blood,” and “brothers and sisters” without further qualification, which had been judicially interpreted to mean all brothers and sisters whether of the whole or half blood. They selected, from these three different phrases, the one which they thought best expressed the intention of the supplementary act. If they intended to exclude brothers and sisters of the half blood from the operation of this supplementary act, it is incredible that they should not have used the words “brothers and sisters of the whole blood,” or that they should use the phrase “brothers and sisters” which had been construed to include brothers and sisters of the half blood. The omission to use the one phrase, as well as the actual use of the other, we submit, demonstrates most plainly an intention to include brothers and sisters of the half blood. Hardcastle on Construction, (Ed. of 1879), 31.
    The commissioners to revise and consolidate the statutes were, as is well known, very painstaking in correcting any phraseology in them, which appeared to be obscure or equivocal. In the revision adopted in 1879, the provisions of the first, second and third sections of the act regulating descents, and the provisions of said act of April 11,1877, were re-enacted without substantial change, and were incorporated into the chapter relating to descents and distribution in consecutive sections from 4158 to 4162, both inclusive. In the notes appended by these commissioners to these sections of the Revised Statutes, the cases of Cliver v. Sanders, and of White v. White, are referred to.
    Speculations about the probable reasons, which induced the legislation, are of small consequence. Washburn on Real Property, B. 3, Ch. 1, section 9; Hadden v. The Collector, 5 Wall., 111; Brower v. Hunt, 18 Ohio St., 341; Clayton v. Drake, 17 Ohio St., 374.
    Any distinction between kindred of the whole and half blood rests upon a very slight and unstable basis.
    No distinction between them is recognized in the civil law, or in the English statute of distribution. The half blood are not excluded in any of the United States. 1 Woerner on Administration, 144; Bingham on Descents, page 324.

      History of prior legislation in Ohio, in regard to descents to the half and whole blood, to the brothers and sisters of the person from whom the estate came to the intestate, to the husband or wife of the intestate, and to the brothers and sisters of a former deceased husband or wife of the intestate. Ordinance of 1787; Revised Statutes, vol. 1, p. 46; 1 Chase, 515; 2 Chase, 906; 1 Chase, 577; 1 Curwen, 199; Swan, 321 ;1 S. & C, 501; S. & S, 306; Act of April 11,1877.
    Act of April 11, 1877, was modeled upon, and borrowed the phraseology of, the fifth subdivision of section 1, of the act regulating descents.
    And the amendment of act of April 11, 1877, again follows provisions of said fifth subdivision of section 1.
    Half bloods were never wholly excluded from course of descent of any property in this state.
    Act of April 11, 1877, is not a mere supplement to section 2 of the act regulating descents.
    Consequence of construing the phrase, “brothers and sisters,” as meaning that those of the half blood shall be excluded. Baker v. Chalfant, 5 Wharton (Pa.), 479.
    The brothers and sisters of the intestate of the half blood are also included. Clayton v. Drake, 17 Ohio St, 372.
    If brothers and sisters of the intestate of the half blood are excluded, it would not follow that such brothers and sisters of the former deceased husband should be excluded.
    The words “brothers and sisters” are used in the same sense in sections 4158, 4161, and the two clauses of section 4162. The Queen v. Commissioners of the Poor, 6 Adolphus & Ellis, 68-9.

      T. E. Powell, Taylor, Taylor & Taylor, Geo. K. Nash and Thomas Milliken, for William G. Deshler and the children of Charles G. Deshler.
    It seems to be conceded that this supplementary act of 1877 was enacted in order to obviate the manifest injustice that grew out of the decision of Brower v. Hunt, 18 Ohio St, 301.

      This supplementary act (now 4162) has twice been before the Supreme Court of Ohio for construction. Spitler v. Heator, 42 Ohio St., 100; Anderson v. Gilchrist, 44 Ohio St., 440.
    Who are the brothers of John G. Deshler? Certainly, in the sense in which they are used in the supplementary act, they are those of the whole blood. Webster’s Dictionary.
    A careful analysis of the act of 1877, will show that the purpose of the statute -was that brothers of the whole blood should take the one-half upon the death of the wife intestate and without issue.
    Now if John G. Deshler had survived his wife and then died, his brothers of the whole blood, William and Charles, would have inherited the entire estate under section 2, subdivision 3, of the descent laws of Ohio (S. & S. 305).
    But if the property had come by descent to John G. Deshler from his father, then at his death intestate, in the absence of wife or children, the estate would go to his brothers and sisters of the whole ,and half blood, provided they are of the blood of the ancestor from whom the estate came. Whole bloods and half bloods only come in upon an equality under the first section of the descent act, and where the property was acquired by descent, devise or deed of gift from an ancestor. Brower v. Hunt, settles the law that a husband is not ancestor to the wife, and that the wife takes from her husband by descent under the second section (4159), and not under the first section (4158) of the descent act.
    In the third subdivision of the first section of the descent act (S. & S. 304), half bloods are recognized, but only because the property is ancestral and because the half bloods are of the blood of the ancestor from whom the estate came.
    As to personal estate it was alwajrs non-ancestral, and hence section 4 (S. & S., 307), says that it shall pass as non-ancestral property under section 2. And this broad distinction between ancestral propert}*- and that which is not ancestral, has always been maintained in our statutes of descent, and the same distinction still exists.

      There is then no reason in the case before the court for straining the words “brothers and sisters” beyond their ordinary meaning.
    It is conceded that but for the statute of 1877, the entire estate which M. Rouise Deshler acquired from her husband, real and personal, would have passed to her two brothers, Cyrus Falconer and John Hall Falconer, and their legal representatives, and that no part of 'it would have gone to the Deshler side of the house. Sec. 2, subdivision 3, S. & S., 305, 307.
    This is so held'in Brower v. Hunt, 18 Ohio St., and in Briney v. Wilson, 11 Ohio St., 425, and for the reason that the estate coming by descent from her husband- to her it “did not come to such intestate from any ancestor;” that the husband not being ancestor to the wife, that the wife as to such an estate became and was a new stock of descent.
    After this came the supplementary act of 1877, 74 Ohio R., 81. *
    ' The title recites that it is supplementary to the descent act. It is not an independent statute of descent by itself, nor an amendment. A supplemental law is one that supplies what is wanted; additional. Burrill Raw Dictionary, and Webster’s Dictionary.
    There was a defect in the second section of the descent act in this, that it deprived the husband’s brothers of the whole blood of any interest in the estate, in a case like the one before the court, and thereupon the supplementary act was passed for the purpose of bringing in another class, to-wit: The brothers of the whole blood, to share with the
    brothers of the deceased wife, under the third subdivision of the second section of the descent act. This act-being supplementary must be read in connection with section 2, subdivisions 3 and 4, and also section 4, just as if it was incorporated in the statute with them. McKibben v. Lester, 9 Ohio St., 627; Butcher v. Smith, 29 Ohio St, 607.
    It is supplementary only to the second section of the descent act, for it expressly limits its operation to real and personal property which came to such intestate from a former deceased husband or wife, under the provisions of the second section of the act, to which this act is supplementary. There is no reason for extending it to the first section of the descent act.
    It will be observed also that the supplementary act of 1877 limits its operation to a very limited class of heirs. On the side of the intestate it makes no change, but leaves the law as it stood before the supplementary act was passed.
    No provision is made in this supplementary act for the father or mother, or cousin, or any other relation, to inherit any portion of this estate. The law then limiting its operation to non-ancestral property, that came under section 2, and from a former husband, and limiting its descent to brothers and sisters, or their personal representatives,. make it very clear that it was not intended to repeal any portion of section 2, but simply to qualify its operation by bringing in a new class to share in the inheritance under subdivision 3, of the said second section.
    The act of 1877 does not intend to repeti.1, amend or supplement, or in any way interfere with section one (now section 4158) of the descent act, which the Supreme Court, in Brower v. Hunt, say “is inapplicable to an estate which descended to the intestate not in right of blood.” Birney v. Wilson, 11 Ohio St., 426.
    It is but a mere supplement to the second section of the descent act, and does not repeal or alter its operation in any respect, except where, as in this case, the estate came to the wife from her deceased husband. It supplements the old law by providing that his brothers and sisters shall take one-half in the contingency stated.
    The act of 1877 being then a mere supplement, must be read in connection with section 2, of the descent act.
    Here comes in the act of 1877 and supplements the third subdivision by saying, that as to real estate which came to the wife under the second section of this act from a former deceased husband, the same shall pass, one-half of it to the brothers and sisters of the husband from whom it came, and only the other half to the brothers and sisters of the deceased wife.

      There is no reason for giving to the words “brothers and sisters” any other than their porper meaning.
    Under section 4 (now 4163) personal property of Mrs. Deshler would pass to the brothers of the whole blood, but this also is modified by the act of 1877, which says that if this personal estate came from the husband, one-half of it would be withdrawn from the operation of said sections 2, and would pass to the brothers and sisters of the husband from whom the estate came. S. & S., 307, section 2 and section 4.
    An unanswerable argument in favor of the right of the brothers of the whole blood to inherit the entire half of the estate, is found in the fact, that precisely the same words are used in giving the estate to them as are used in giving the other half of the estate to the brothers and sisters of the intestate.
    Precisely the same words, “ brothers and sisters, ’’are used in the act of 1877 in reference to each half. There is no reason, then, to say as to the wife’s side it embraces only whole blood, and as to the other, whole and half blood equally.
    There are cases, we admit, where the words “brothers and sisters” have been construed to embrace half as well as whole blood, but they are exceptions. One of such cases that is so much relied upon by counsel for plaintiffs in error, is Cliver v. Sanders, 8 Ohio St., 503. But that case arose under the first section, subdivison 4, of the descent act of 1835, and not under the second section.
    Under section two of the descent act the legislature has recognized brothers and sisters both of whole blood and half blood, but it has expressely said that half bloods shall only inherit where there are no whole blood, and it is only fair to conclude that the act of 1877 was not intended to interfere with this distinction.
    If it had intended to say that whole bloods and half bloods should both be included, it would have used the words as are used in the third subdivision, of the first section, “whether such brothers or sisters be of the whole or half blood.”

      We make the further claim that if we are wrong in limiting the meaning of the words “brothers and sisters” exclusively to those of the whole blood, and that as claimed by the counsel for plaintiffs in error, the words “brothers and sisters” are broad enough to include both whole and half blood, yet it by no .means follows that they are jointly and equally to take.
    Giving to the words “brothers and sisters,” in the act of 1877, the meaning claimed by counsel for plaintiffs in error, and as embracing both whole and half bloods, still the order of priority is not to be disturbed, and half bloods can take only where there are no whole bloods.
    In Ellis v. Ellis, 3 C. C. Rep. 186, it was held, in interpreting the act of 1877, that “ in case there were no brothers or sisters of the former deceased husband or wife, section 4162 had no application, and that the entire estate of the intestate passed under section 4159 (old section 2) to his or her brothers and sisters.”
    The decision recognized the fact that old section 2 (4159) is in full force as to non-ancestral property, and is only qualified by the supplemental act of 1877, when there are brothers and sisters of the former deceased husband or wife. The act of 1877 introduced a new elemént in the descent act. •It qualifies the second section by making the deceased husband’s brothers and sisters as to one-half the property the heirs of the deceased wife.
    It was apparently the purpose of the act to place the one-half of the estate back as a part of the purchased estate of John G. Deshler, and from him to descend to his brothers of the whole blood The great error that runs all through the elaborate brief of plaintiffs in error is, that it ignores the difference -between ancestral and non-ancestral property; between real estate that passes under section 1 (now 4158) and section 2 (now 4159); between an estate that relates to the blood of the ancestor and an estate that relates to the blood of the intestate.
    The Ohio cases referred to by plaintiffs in error, to-wit; Cliver v. Sanders, 8 Ohio St., 501; Clayton v. Drake, 17 Ohio St., 367; White v. White, 19 Ohio St., 531; Lathrop v.
      Young, 25 Ohio St., 451, and other cases, were decisions arising under the first section of the descent act, and only involve questions relating to the descent of ancestral property, and they throw no light upon the question now before the court.
    The question before the court is a direct one between the whole and half blood as to the non-ancestral property. It is not like the case in 51 Vermont, 527, or the gift to brothers and sisters, cited in 2 Jarman on Wills, and other cases cited by plaintiffs counsel from other states, some of which hold that the words “ brothers and sisters ” • include both whole and half blood.
    In the supplemental act of 1877 it is not necessary to use the words11 whole ” or 11 half” blood. They were already used in the second section, subdivisions 3 and 4, to which it is a mere supplement. It must not be read by itself, but as such supplement.
    The effect of a decision as claimed by. plaintiffs in error would be to change the whole order of descent, as to non-ancestral property, to break the harmony of the statutes of descent, and to include a class which has been excluded by express terms, in every statute which has ever been enacted on the subject in Ohio.
    We repeat that the error running all through the elaborate argument of plaintiffs in error, is in insisting that the act of 1877 should be read by -itself, and that the words “brothers and sisters-” must be read without reference to section 2, subdivisions 3 and 4 of the descent act.
    Our claim is, that it must be read as supplemental to section second, and in connection with it, and not as an independent act; and hence reading the twt> together, the true meaning of the words “brothers and sisters” is clearly ascertained, in fact is expressly stated. Endlich Int. St., Section 40; Van Ripper v. Essex, R. R. Bd, 3 N. J. E., 23.
    Counsel for plaintiff, refer to the fact that the commissioners to revise the statute in 1879, re-enacted without substantial change and incorporated in the descent act, sections 4158 to 4162 (supplementary act), both inclusive.

      But all this was done after Mrs. Deshler died and after the rights of the parties had become fixed. Besides it is an exceedingly important fact to be considered that the commissioners in this revision omitted the title of the supplementary act of 1877, reciting that it was merely a supplementary act to the old section 2 (now 4159). This omission is of vital importance.

      Alex. F. Hume, for cross-petitioner in. error.
    It is claimed that the personal estate passed to the widow, under section 2 of the descent and distribution act as amended, which was passed and took effect March 4, 1865 (S. & S., 304); or if it did not pass under that section, it did pass under that section aided by section 4 of the same act; or if it did not pass under said section 2, aided by said section 4, it did pass under both of' said sections aided by the supplementary act thereto, passed April 11, 1877 (74 O. E. 81).
    There is not a word in this section relating to personal property. It in no way even alludes to personal property. It does not purport to provide a mode for the distribution of personal property. The mode for the distribution of personal property is described in section 4 of the same act. If the legislature had deemed section 2 to be sufficient to distribute personal property, it would not have enacted section 4 at all. It was useless to enact, section 4, if section 2 prescribed the mode of distributing'personal property.
    If th’e legislature had intended personal property to be distributed under section 2, it would have said so in so many words. It would not have enacted section 4 at all. From the fact that it enacted section 4, at the same time it enacted section 2, the plain inference is that it intended just what it said, viz.: That section 2 should prescribe the course of descent of non-ancestral real estate, and section 4 should prescribe the mode for the distribution of personal property.
    Can section 2 be so aided by section 4 that it will provide for the descent of personal property? Section 4 is entirely a distinct and independent section. It relates solely to personal property. Section 2 relates solely to non-ancestral real estate. The subject matter of section 4 is entirely different from that of section 2. If section 2 is sufficient to prescribe the mode of distribution of personal property, then it was useless to enact section 4. The language of section 2 (as it relates to real estate) is “descend and pass.” The language of section 4 (as it relates to personal property) is “shallbe distributed.”
    Section 4 only provides that personal property—its subject matter—shall be distributed in the “course, ” or according to the mode or manner, pointed out in section 2 for the descent of non-ancestral real estate, and not that section 2 shall govern the distribution of personal property.
    It will be observed that sections 2 and 4 of the descent act, which were in force at the death of John G. Deshler, were enacted and took effect on April 16, 1862, while section 180 of the administration act took effect November 1, 1840, and was in force when sections 2 and 4 were enacted, and the legislature well knew, when it enacted sections 2 and 4, the terms of said section 180; and if it intended at that time, that all the personal property that would pass under section 180 of the administration act, to a widow of an intestate dying without issue, should no longer pass Under said sections 2 and 4, it would have so said; and because it did not so say, the presumption is that it did not so intend.
    If all the real estate or personal property that has come to such relict is not affected by said supplementary act, it is not the fault of the act; it is because such property did not come to such relict in the way pointed out in such supplementary act.
    I claim that M. Eouise Deshler at the death of her husband, John G. Deshler—he dying intestate and without leaving a legitimate heir of his body—became immediately entitled to all the personal property owned by him at his death, as his widow, under the provisions of section 180 of the administration act—that such personal properts’-, although in her possession at her death (she dying intestate and without issue), did not pass, one-half to the brothers and sisters of her deceased husband, John G. Deshler, and one-half to her brothers and sisters, under the supplementary act of 1877, but that the whole thereof did pass to her brothers and sisters or their representatives.

      L. A. Russell and Selwyn N. Owen, for plaintiffs in error, in the Stone case.
    The attempt to lead this court to a solution of the question at bar through a wilderness of definitions would be vain and unprofitable.
    What did the general assembly intend when it enacted the original of section 4162, which was the supplement of April 11, 1877 ( 74 0. T-81)?
    The supplement was in fact and in legal effect to section 2 (4159) of the act of descent and distribution of March 14, 1853 (501 S. & C.), and its amendments. The supplememt repealed nothing.
    What is the office and effect of a supplementary act? Endlich on Interpretation of Statutes, Sec. 40; Vanriper v. The Essex Public Road Board, 38 N. J. L,., 23; Henry v. Trustees, 48 Ohio St., 672.
    What is the policy of the state as indicated by legislation? 1 Chase, 515, Feb. 22.
    There has been no break nor change in.this policy to the present time,, unless the act of 1877 is construed to inaugurate a new and radical departure from the established rule of more then seventy years, concerning non-ancestral propertj'-.
    That the real property dealt with in 4162, is non-ancestral, is established by two considerations.

      (a) A deceased consort cannot be an ancestor to the survivor. Binney v. Wilson, 11 Ohio St., 426; Brower v. Hunt, 18 Ohio St., 311; Lathrop v. Young, 25 Ohio St., 451.
    (b) The ancestor contemplated in section 4158, is the ancestor from whom the estate came immediately to the intestate by descent, devise, or deed of gift. Prickett v. Parker, 3 Ohio St., 426; Clayton v. Drake, 17 Ohio St., 367.

      No radical change in rule or course of descent, was intended by this supplementary act. It found the class of property which it undertook to provide for, subject, for seventy-two years, to a preferential descent, in default of nearer kindred, to the brothers and sisters of the whole blood.
    The supplement places real and personal estate upon the same footing—in the same class.
    Personal property has never been treated as ancestral estate in Ohio. It is not inheritable. It is not descendible. It goes to the personal representatives for distribution. 2 Cooley Black. Com. 201; 4163 Revised Statutes.
    Personalty is not turned to ancestral property. For the first time in Ohio it is claimed that personal property has, by legislation, been turned into the current of ancestral real propert3n
    Section 4163 sends personal property down the line of non-ancestral real estate, and the whole blood brothers and sisters are preferred.
    If Stone had died unmarried this estate would have gone to his brothers and sisters of the whole blood.
    Under the construction contended for, his property having descended to his wife, one half of it returns, upon her death, to those who would have succeeded to it if it had been ancestral property. Why this? No rational solution, we submit, of this strange freak of legislation, can be suggested.
    If Margaretta Stone had died the day before this supplementary enactment took effect, the estate would have passed to her brothers and sisters of the whole blood.
    If Margaretta Stone had acquired, after her husband’s death, real or personal property, it would unquestionably have passed, upon her death, to her whole blood brothers and sisters.
    The only expressed change in the course of succession of her property, which came from her husband, is found in the limitation upon the quantity of it to one half instead of the whole. It was still non-ancestral.

      The half which went back to the husband’s brothers and sisters remained non-ancestral.
    Those upon whom each moiety of the descended estate passed, upon the widow’s death, took it as non-ancestral property; because it came, not in right of blood, by deed of gift, devise or bequest. Binney v. Wilson, 11 Ohio St., 426; Brower v. Hunt, 18 Ohio St., 311; Lathrop v. Young, 25 Ohio St., 451.
    Had Silas Stone died unmarried his estate would have passed, even with 4162 in force, to his brothers and sisters of the whole blood under 4159—being non-ancestral property.
    The rules of descent prescribed by 4159 have regard to the blood of the intestate; those of 4158 chiefly to the blood of the ancestor.
    Ancestral property regards the ancestral blood—non-ancestral the next in kinship.
    It is maintained that the result contended for was accomplished by the use of the words “brothers and sisters” which had already been adjudged to embrace the whole and half-blood alike; and Cliver v. Sanders, 8 Ohio St., 501, is cited by counsel to support this contention. Here, we submit, is the fundamental infirmity of their reasoning. It is right here, also, that the circuit court of Cuyahoga county, in Doster v. Stone, fell upon a fatal misinterpretation of the adjudication in that case. The most that is or can be claimed for it is that it supports the proposition, that where the words brothers and sisters are used without limitation, they embrace the whole and half-blood.
    In sharp contrast with the statute construed in Cliver v. Sanders, the statute before us deals with non-ancestral property, in the descent of which preference has been accorded to brothers and sisters of the whole-blood for eighty-eight years. If the same logic and rule of reasoning and deduction which were employed in that case are applied to the statute at bar, we submit that the result will lead conclusively to the preference of the whole blood in the descent of this non-ancestral property.

      Treat the act in question as a supplement and the way is clear.
    Our contention is confirmed by the fact that personal and real estate go together.
    That this is a true solution, is emphasized by the fact that real and personal property are cast by the provision in question into a common line of descent or distribution and, as we have already shown, never before had it been claimed that a legislative attempt was made to impart to personal property the attributes and inheritable qualities of ancestral property.
    If the half blood take, “ former deceased husband or wife” must inevitably be read “ ancestor.”
    In conclusion, we submit that a comprehensive and conclusive answer to the briefs and opinion on the other side is, that they rest upon the unwarranted premises:
    (1) That the legislature with deliberation undertook, by enacting the supplement of 1877, to take the property in quéstion out of the operation of the provision supplemented, and cast it into the line appointed by 4158.
    (2) That “brothers and sisters” had already been adjudged by this court to embrace the half blood.
    (3) That the act of 1877 was a substantive and independent act instead of a supplementary provision.
    Boynton, Hale & Horr, for Ithiel Stone et al., defendants in error.
    We claim that the expression, “one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife from which such personal or real estate came, or their personal representatives,” as used in section 4162, represent a class and means all the brothers and sisters of the intestate or of the deceased relict.
    It is a primary rule of construction that the legislature is intended to have used the words of the statute in the sense in which they are commonly understood. In common parlance and in the everyday use of the words, “brothers and sisters,” they are understood to embrace both the whole and half blood. Webster’s Dictionary; The Century Dictionary; Worcester’s Dictionary; Am. & Eng.. Ency. of Daw; Grieves v. Rawley, 10 Hare, 63; Gardner v. Collins, 3 Mason, 398, 404; Hawkins on Wills, section 86; Luce v. Harris, 79 Penn., 432; Schouler on Wills, section 536; Shult v. Johnson, 2 Jones, Eq., 202; Wood v. Mitchell, 61 How., 48; 2 Redfield on Wills, 73; Blackbrough v. Davis, Pere Williams, 41, 49; 2 Jarman on Wills, 154; 2 Blackstone, Star, p. 505; Allen v. Little, 5 Ohio St., 65; Woodworth v. The State, 26 Ohio St., 196; State v. Peck, 25 Ohio St., 28; Potter’s Dwarris on Statutes, 193; Sedgwick, 219.
    A slight review of the history of the legislation on the subject of descents, with careful attention to the use of the language employed by the legislature, marking and defining distinctions to be taken when sought to be established between rights created for the whole and half blood, will most clearly demonstrate that the legislature, in using the expression “brothers and sisters” in the act of 1877, intended to include all brothers and sisters in one class, whether of the whole or half blood of the deceased husband of wife from whom the estate came, as well as all the brothers and sisters of the intestate. Ordinance of 1787, 1 Chase, 66; 1 Chase, 162; 3 Ohio St., 279; 2 Chase, 854; 2 Chase, 313; 3 Chase, 1789; Swan’s Statutes, 321; act of April. 17, 1857.
    ■The construction that we contend for is sustained by the uniform current of authority, both English and American, and especially by that of our own state. Cliver v. Sanders, 8 Ohio St., 501; White v. White, 19 Ohio St., 531; Gardner v. Collins, 3 Mason, 403; 2 Pet., 58; Clark v. Sprague, 5 Blackf., 412; Hallett v. Hare, 5 Paige, Ch. R., 315; Clay v. Cousins, 1 T. B. Monroe, 75; Rowley v. Stray, 32 Mich., 70; Beebe v. Grijfing, 14 N. Y., 235; Arnold v. Den ex Dem Phoenix, 2 South. N. J. R., 862; Baker v. Chalfant, 5 Whart., Penn., 477; Sheffield v. Lovering, 12 Mass., 490.
    The adjudications are almost without number, holding it to be the rule of interpretation, that where the Supreme Court has defined,a term and given to it a fixed legal meaning, and the legislature subsequently adopt the term or use it, it is used in the sense given it by the court. Turney v. Yeoman, 14 Ohio, 218; Norris v. The. State, 25 Ohio St., 224; Gorgan v. Garrison, 27 Ohio St., 50; Raymond v. Cleveland, 42 Ohio St., 529; Rhodes v. Weldy, 46 Ohio St., 234; McCool v. Smith, 1 Black, 459; The Abbotsford, 98 U. S., 440; Claflin v. Commonwealth Insurance Co., 110 U. S., 81; Rice v. R. R. Co., 1 Black, 360; Endlich on Interpretation of Statutes, §367 and §369; Sutherland on Statutory Construction, §333; Hakes v. Peck, 30 How. Pr., 104; Mersey Docks v. Cameron, 11 H. L. Case., 480; Ex parte Campbell, Raw Reports, 5 Ch. App., 703; Clark v. Wallond, 52 L. J. Q. B. Div., 321; Ex parte Atwater, R. R. 5 Ch. Div., 27; Mansell v. The Queen, 8 Ellis & Black, 73; Cathcart v. Robinson, 5 Pet., 265; Pennock v. Dialogue, 2 Pet., 1; McDonald v. Hovey, 110 U. S., 619; Sedgwick on Statutory Raw, 224; Bishop on Written Raw, section 97; State v. Brewer, 22 Ra. An., 273; Woolsey v. Cade, 54 Ala., 378; Mason v. Fearson, 9 How., 248, 258; County Seat of Linn County, 15 Kan., 500; McKee v. McKee, 17 Md., 352; Whitcomb v. Rood, 20 Vt., 49; O’Byrnes v. State, 51 Ala., 25; Cota v. Ross, 66 Me., 161; Tuxbury’s Appeal, 67 Me., 267; Ex parte Banks, 28 Ala., 38; Interstate Comm. Com. v. B. & O. R. Co., 145 U. S., 264; 1 Bouvier, 233; 3 M’Cord, Ch. R., 440; Woodbury v. Berry, 18 Ohio St., 456; Bruner v. Briggs, 39 Ohio St., 484; In the Matter of the last will of Hathaway, 4 Ohio St., 385; Spitler v. Heeter, 42 Ohio St., 100 ; Hurdsr. Robinson, 11 Ohio St., 237; Branch’s Principia Regis et Equitas, 18; Terrill v. Auchauer, 14 Ohio St., 87 ; Hardcastle on Construction (Ed. 1879), 31; Henry v. Trustees, 48 Ohio St., 671.

      Squire, Sanders & Dempsey, and E. P. Hatfield, for Doster, et al., defendants in error.
    I. The reserved rights did not come to Margaretta by descent from her husband, and therefore, upon her death descended to her brothers and sisters to the exclusion of the brothers and sisters of S. S. Stone. See Junction R. R. v. Ruggles, 7 Ohio St., 1.
    II. Such interest as Mrs. Stone received from her husband in the Kellogg farm was personalty and not realty, and she acquired title to the property as realty by purchase, subsequent to the death of S. S. Stone. Lewis v. Hawkins, 23 Wallace, 119; Hathaway v. Payne, 34 N. Y., 92; Palmer v. Morrison, 104 N. Y., 138; Williams on Executors, 7th Ed. p. 731, 734; Moore v. Burrows, 34 Barb., 173; Sutter's heirs v. Ling, 25 Penn. St., 466, 467; Loring v. Cunningham, 9 Cushing, 87; Henson, admr., v. Ott, 7 Ind., 512; Sugden on Vendors and Purchasers, star page 171, first American Edition; 8 Ohio St., 449, 453; Story’s Equity Jurisprudence, 8th edition, 1212; Beach on Modern Equity Jurisprudence, par. 527; Gilbert et al., v. Port, 28 Ohio St., 276, 296; Stauffer v. Eaton et al., 13 Ohio St., 322, 334; Manley v. Hunt et al., 1 Ohio St., 257; Minns v. Morse et al., 15 Ohio St., 568; Butler v. Brown's heirs, 5 Ohio St., 211; Revised Statutes, section 4188; Elliot v. Plattor, 43 Ohio St., 208.
   Williams, J.

While each of these cases presents a question not involved in the other, there is one question common to both, which will be first considered; and that is, whether, when the relict of a former deceased husband or wife dies intestate and without issue, possessed of real or personal property which came to the intestate from such husband or wife, in the manner contemplated by the act of April 11, 1877 (74 Ohio Taws, 81), the one-half of the property passes and descends, under the provisions of that act and the statutes to which it is supplemental, to the brothers and sisters of the whole blood of the former husband or wife, and their representatives, in preference to those of the half blood, and their representatives, or to both classes equally.

In the Stembel case, the question arises in an action brought by the administrators of M. Touise Deshler, in which they ask the direction of the court, in making distribution of moneys in their hands, the proceeds of personal property which descended to her from her former husband John G. Deshler. It appears, that on the 8th day of January, 1878, John G. Deshler died in Franklin county, seized of certain real property situated in this state, which he had acquired by purchase, and possessed of a personal estate largely beyond what was necessary for the payment of his ■debts and the expenses of administration. He died without issue, and intestate, leaving a widow, M. Eouise Deshler, who died intestate' and without issue, February 12, 1878; ■and the personal property which came to her from her husband, was converted into money by her administrators, who hold it ready for distribution as the court may direct. John G. Deshler had two brothers of the whole blood, both of whom survived him and his widow. One of them has since ■died leaving children. Surviving John- G. Deshler, were also sisters of the half blood, and representatives of a deceased brother and of deceased sisters of the half blood. The controversy, presenting the question now under consideration, is between the brother and representatives of the deceased brother of the whole blood of John G. Deshler, and the sisters and representatives of the deceased sisters and brothers of the half blood. The latter claim they are entitled to share equally with the former in the distribution of one-half of the fund in the hands of the administrators.

In the other case, the question is made in an action for the partition of real estáte of which Margaretta Stone died seized. Silas S. Stone, it appears, died intestate, and without issue, February the 18th, 1884. He had acquired the land, the partition of which was sought in the action, by purchase, and died seized of the same. Margaretta, his widow, died without issue and intestate, January the 21st, 1892, possessed of the land. The plaintiffs in the partition suit, are the children of the only brother of the whole blood of Silas S. Stone, the brother being dead, and there being no sisters of the whole blood or their representatives. The plaintiffs claim they became the owners of one-half of the land upon the death of Margaretta, and her brothers and sisters, and their representatives, the owners of the other half. The brothers and sisters of the half blood of Silas S. Stone, and the representatives of two deceased brothers of the half blood, were, on their motion, made parties defendant.. They claim to be tenants in common with the plaintiffs, and demand partition accordingly.

The question thus presented by each of these cases, must find its solution in the statutes regulating the descent and distribution of the estates of deceased persons, in force when the estates vested.

When Deshler and his widow died, the act of March 14, 1853, as amended April 17, 1857, and the supplemental act of April 11, 1877 ( 74 Ohio Laws, 81), were in force. After-wards, and before the death of Stone and his widow, the statutes were amended in some particulars, but not so as to' affect the question in hand. The provisions of the statutes, so far as they are deemed material to the decision of the question, are: Sections 1 and 2 of the act of March 14, 1853, as amended by the act of April 17, 1857 (S. & C., 501): Section 4 of the act of March 14,1853, and the supplemental act of April 11, 1877. The provisions of sections 1 and 2, which affect the question, are as follows:

“ Section 1. That when any person shall die intestate, having title or right to any real estate or inheritance in this state, which title shall have come to such intestate, by descent or devise, or deed of gift from any ancestor, such estate shall descend and pass in parcenary, to his or her kindred, in the following course:
“ First—To the children of such intestate, or their legal representatives ;
“ Second—If there be no children or their legal representatives living, the estate shall pass to and vest in the husband or wife, relict of such intestate during his or her natural life;
“ Third—If such intestate leave no husband or wife, relict of himself or herself, or at the death of such relict, the estate shall pass to and vest in the brothers and sisters of the intestate who may be of the blood of the ancestor from whom the estate came, or their legal representatives, whether such brothers and sisters be of the whole or half blood of the intestate.”
“ Section 2. That if the estate came not by descent, devise or deed of gift, it shall descend and pass as follows:
“ First—To the children of the intestate and their legal representatives;
“ Second—If there be 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 leave no husband or wife relict of 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 be 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.”

The other provisions of these two sections, are not deemed important in the decision of the question.

Section 4 of the act of March 14, 1853, provides, that “ If any person shall die intestate, leaving any goods, chattels, or other personal estate, such goods, chattels, or other personal estate shall' be distributed agreeably to the foregoing course, prescribed in the second section of this act, saving, however, such right as any widow may have to any portion of such personal estate.”

The supplemental act of April 11, 1877, is as follows :

“ An act supplementary to the act entitled ‘An act regulating descents and the distribution of personal estates,’ passed March 14, 1853 (S. & C. 501), and to the various acts amendatory thereof.
“ Section 1. Be it enacted by the General Assembly of the State of Ohio, That when any person, the relict of any deceased husband or wife, shall die intestate and without issue, possessed of any real estate, or personal property, which came to such intestate from any former deceased husband or wife, under the provisions of the second section of this act, to which this act is supplementary, then such estate, real and personal, shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one half to the brothers and sisters of such deceased husband or wife from which such personal or real estate came, or their personal representatives.
“Section 2. This act shall take effect from and after its passage.”

These several statutory provisions are now embraced in sections 4158, 4159, 4162, and 4163, of the Revised Statutes. The act of 1857 was construed in Brower v. Hunt, 18 Ohio St., 311. It was there claimed, that property which had come from a deceased husband to his widow, under section two of that act, descended,- upon her decease without issue and intestate, as ancestral property, under section one, to the brothers and sisters of the deceased husband. It was held, however, that her brothers and sisters inherited, under the provisions of section two, the whole of the property she had so received from the estate of her husband. The apparent or supposed hardship and injustice resulting from the statutes, according to that interpretation, gave rise, no doubt, as counsel on both sides maintain, to the supplemental act of 1877. And three distinct views are advanced with respect to that act. One is, that its purpose was to place one-half of such property in the category of ancestral estates, and send it through the same channel of descent. Another, that it prescribes a new and independent rule of succession to the property, complete in itself, under which brothers and sisters of the whole and half blood take as one class. And the other, that the act should be construed in connection with the statutes to which it is supplementary, leaving operative all their provisions, except as changed or abrogated by it; and when so construed, each moiety of the property, it is claimed, descends to the brothers and sisters of the deceased husband or wife, and those of the relict, respectively, in accordance with the provisions of section tw^o of the act of 1857—now, section 4159, of the Revised Statutes.

The argument in support of the first of these propositions, is based chiefly on the decision in Brower v. Hunt, supra; it being, in substance, that, as that decision denied the claim to the property, asserted by the brothers and sisters of the deceased husband, on the ground that the latter was not the ancestor of his widow, within the meaning of section one of the act of 1857, it was the legislative intent, in the enactment of the supplemental statute, to change the rule announced by the court, by making, in legal contemplation at least, the deceased husband or wife, the ancestor of his or her relict. We cannot adopt that view. The legislature appears rather to have accepted the rule established by the decision referred to, and, treating such property as non-ancestral, designed by the act in question, to secure in the future, one-half of the property to the relatives of the deceased husband or wife, and the other half to those of the relict. Such a division appeared to the legislative body to be just and equitable, and that, we think, was the practical end sought, and not the creation of a new class of ancestral estates.

The act undoubtedly establishes a new line of succession, in that, it divides into two equal parts, the property which before its enactment went entirely to the brothers ánd sisters of the intestate relict, and transmits one to the brothers and sisters of the former deceased husband or wife; but it prescribes no express rule as to how the brothers and sisters shall take. All real property, under our statutes of descent, is embraced within the two classes, ancestral, and non-ancestral, and the distribution of personal estates is according to the course prescribed for the descent of non-ancestral real property. -Section 1, of the act of 1857, expressly provides, that when brothers and sisters succeed, under its provisions, to ancestral property, they shall so take it, whether they “ be of the whole or half blood of the intestate.” And by the express provisions of section 2, non-ancestral property passes first to brothers and sisters of the whole blood, and only when there are none of that class, to those of the half blood. The supplemental act, has not, in express terms, provided in which of these two ways broth■ers and sisters shall take the property descending under its provisions. It is contended that, as the terms it has employed, in their ordinary and legal import, are sufficient to include in those who may take under' it, brothers and sisters of the half, as well as of the whole blood, the act should receive that construction which will allow the former to take in parcenary with the latter. Whether that would be its proper construction, if the statute provided a complete scheme of descents in itself, it is not necessary to decide. In this, as in many other instances, to arrive at the proper interpretation of the statute, it must be considered in connection with other statutes on the same subject. The act in question became a part of the statutes of descent, and was enacted to supply some defect in then existing legislation, or correct some evil growing out of it. It contains no repealing clause, and did not operate to repeal by implication, any of the statutory provisions then in force, except in so far as it is wholly irreconcilable with them; and must, therefore, be construed in its proper connection with those statutes, and so as to leave effective all of their provisions, not clearly changed or abrogated by it, keeping in view the mischief which it was intended to remed3c The substantial hardship and injustice'growing out of the act of 1857, as construed in Brower v. Hunt, was, that the whole of the non-ancestral property which came to the relict from the former deceased husband or wife, descended upon the death of the relict, to his or her kindred; none of it to the kindred of the deceased husband or wife from whom the estate came. The remedy provided by the supplementary act consisted in dividing the property into two moieties, and giving one to the kindred of each. The general policy pervading our statutes of descent, is, that the nearer of kin shall inherit, in preference to those more remote; and, when the subject of the inheritance is non-ancestral property, brothers and sisters of the whole blood of the intestate, are regarded as nearer of kin to the intestate than those of half blood. The former, therefore, inherit in preference to the latter. That rule prevailed when the supplemental act was passed, and remained unaffected by it. It is not readiE^ perceived why a different course of descent should obtain for the particular non-ancestral propert3'- mentioned in the act, than that which governs all other property of that character; nor, is it apparent the act was designed to accomplish such a result. The order in which the brothers and sisters of the intestate relict inherited before the adoption of that statute, was not within the mischief to be remedied, else that order would not have been retained undisturbed as to non-ancestral property generally. The whole of the mischief complained of was cured, by taking one half of the property from that line of descent, and giving it to the brothers and sisters of the former deceased husband or wife, leaving the other half to descend as the whole of such property had theretofore descended under the provisions of the second section of the act of 1857; the object and scope of the supplemental statute being, we think, to limit the quantity of the property that should thereafter so descend, and not to change its course of descent. We are also of the opinion that the half of the property which goes to the brothers and sisters of the former deceased husband or wife, descends in the same way; that is, first to the brothers and sisters of the whole blood, or their representatives, and if there are none, then to those of the half blood and their representatives. The statute employs the same language in disposing of each half, and it must be presumed that it was used with respect to both in the same sense. There is nothing to indicate a different intention.

In Brcnver v. Hunt supra, the court, in reaching the conclusion that the second section of the act of 1857 provided for all cases of descent not included in the first section, supplied certain words in the second section, which it was thought -were necessary to give complete expression to the legislative intention, as derived from a consideration of both sections. In the opinion, White, J., says: “The second section was intended to provide for all cases not included in the first. The descriptive words of the section are, ‘ if the estate came not by descent, devise or deed of gift;’ yet they have alwaj'S been regarded as embracing a devise or deed of gift from a stranger. Brewster v. Benedict, 14 Ohio, 385; Penn v. Cox, 16 Ohio, 31; Birney v. Wilson et al., 11 Ohio St., 427. The meaning is, ‘if the estate came not by descent, devise or deed of gift,’ as provided in the first section.” The words, “as provided in the first section,” were plainty implied, though not expressed in the second section; and that section was construed as if the words above quoted were contained in it. ' Those words were not, we think, more plainly implied, than are the words, “as provided in said second section,” after the word “descend” in the supplemental act of-1877. And the proper interpretation of a statute requires that effect be given to what is clearly implied from its language, for that is as much a part of the statute as the language itself. Doyle v. Doyle, 50 Ohio St., 330.

Mrs Deshler left surviving her, a brother of the whole blood, and the representatives of a deceased brother of the whole blood, but no brother or sister of the half blood. The brother and representatives of the deceased brother, who are the cross-petitioners in error in the Stembel case, claim the whole of the fund subject to distribution by the administrators; and whether they are entitled to it, or not, is the question peculiar to that case. That they are entitled to the one-half is not disputed. It is claimed they are entitled to the other half, because the personal property out of which the fund arose, did not come to Mrs. Deshler from her husband under section two of the act of 1857 (now section 4159 of the Revised Statutes), but under section 180, of the administration act of March' 23, 1840, which was in force at the death of her husband. That section is as follows: “When the intestate shall not have left any legitimate child of his body, the widow shall be entitled to all the personal estate, as next of kin, which shall be subject to distribution upon settlement of the estate; and if the intestate shall have left such child, the widow shall be entitled, upon distribution, to one-half of any sum not exceeding four hundred dollars, and to one-third of the residue of the personal estate subject to distribution.”

It is first insisted that section two of the act of 1857, has no application to personal property, but merely regulates the descent of non-ancestral real estate; and, though section four of the act of 1853, prescribes the same course for the distribution of the personalty, that kind of property does not pass or descend under section two, but under and by virtue of section four, and is not, therefore, within the provisions of the supplemental act of 1877. It is further contended that the right of the widow to the personal property of her deceased husband, is expressly saved by the fourth section from the operation of the second; and, for that reason, it does not come to her under the latter section.

Considering these statutory provisions together, there is little difficulty in giving them a construction which makes them consistent, and effectuates the manifest intention of the legislature. The act of 1877 is, itself, a legislative interpretation of the statutes in force at the time of its enactment, to the effect, that the personal estate of the deceased husband or wife, who died intestate and without issue, came to the relict under section two of the act of 1857. And unless it is so held, the purpose of the supplemental act is, partially at least, defeated. It may be that, in a technical sense, personalty does not pass under section two. But it passes by virtue of the provisions of section four, in accordance with the rules of descent established by section two; and, in that sense, it comes to the relict from his or her former husband or wife “ under the provisions ” of the latter section. And it seems clear, that such was the sense in which the supplemental act uses the words, “ under the second section of the act to which this act is supplementary.” This construction is not inconsistent with section 180, of the administration act. That section regulates the distribution of the personal estate by the administrator. It provides that the widow shall be entitled to all the personal estate which shall be subject to distribution upon settlement of the estate, if the deceased left no child who could inherit, and if there be such child, then to a part only, upon the distribution. It does not appear inconsistent to hold, that the widow may come to the personal property of her deceased husband under section two, that is, according to the rules of descent prescribed by that section, and be entitled to receive it from the administrator upon distribution, on the settlement of the estate, under section 180. If she may take the personal estate under each of the sections, it by n-o means follows that it does not come to her under section two, as well as under the other. Nor, do we think the saving clause contained in section four, prevents the application of the supplementary act to the personal estate received by a widow from her deceased husband. Other statutes secure to her certain articles of personal property, and certain provisions out of the husband’s estate; and, under section 180, though there be a child to inherit, she is nevertheless entitled to a share of the personalty upon distribution. To remove any repugnancy between these provisions, and the rules of succession to the personal estate under sections two and four, the saving clause, no doubt, was inserted in the latter section ; and that confirms the conclusion that where there is no child of the deceased husband to inherit, the whole of his personal estate goes to the widow under section two; for if she could take nothing under that section, as is claimed, there was no need of any saving clause.

The cross petitioners in error in the Stone Case, are the brothers and sisters of Margaretta Stone, and the representatives of those who are deceased. They claim that one tract of land included in the action for partition, known as the Kellogg farm, did not come to Margaretta from her husband, but was a new acquisition b3r her after his death. It appears, that in 1873, Alfred Kellogg, who was then the owner of the farm, entered into a contract for the sale of the same to John Huntington, for the sum of ninety thousand dollars. Huntington paid ten thousand dollars on the purchase, and entered into the possession of the land. After-wards, in 1878, Kellogg, by deed duly executed, conveyed the land to Silas S. Stone, and assigned the Huntington contract to him ; Stone agreeing to convey upon payment of the purchase price. This was the condition of the title when Stone died. After his death, and under an arrangement with his administrators, Huntington, and those who had become interested in the land under him, released and transferred to Margaretta, as widow and sole heir at law of Silas Stone, their interest in the land, and paid the administrators twenty-five thousand dollars, in consideration of which, Huntington, and the others, were discharged from further liability on the contract. Stone was seized of the legal title to the land at the time of his death. The right of Huntington under his contract was, to compel the conveyance of the land upon payment of the purchase price. The legal title descended to Margaretta, subject to that right of Huntington. He had an equitable interest in the land to the extent he had made payment of the purchase money, which, upon payment of the residue, would ripen into a. complete equitable title. He chose to surrender his equitable interest, rather than complete his purchase, and take the title. The equitable interest was surrendered to the holder of the legal title, Margaretta; and that was the condition of the estate when she died.

It is well settled that the course of descent of real estate, is controlled by the legal title; and when the legal and •equitable title unite in the same person, the latter becomes merged in the former, and does not descend separately. The legal title draws to it the whole estate, and carries it in the same channel of descent as if the equitable estate had never existed. It follows, that the Kellogg farm descended from Margaretta, as real estate which had come to her from her husband, under section 4159, of the Revised Statutes.

There is no error in the judgmeril of the circuit court on that questioji, and the j^ldgme)lt in that respect is affirmed. But that co2irt erred, we think, in holding that the brothers and sisters of the half blood of Silas S. Stone, or their representatives, were entitled to share in the partition; and that part of its jtidgment is reversed, and the cause remanded, with instructions to sustain the demurrer to their answer and cross-petitiofi, and for partition as prayedfor by the plaintiffs helow. The judgment in the Stembel case is affirmed.

MinsharrJ.

(dissenting). I cannot concur in this opinion. It gives to the plain language of section 4162, Revised Statutes, a construction, that is, in my opinion, without any warrant in the rules of interpretation. The section provides how real or personal property shall descend, which came to an intestate relict from a former deceased husband or wife, under the provisions of section 4159: It is, that when such relict dies without children or their legal representatives, the property shall pass and descend, one-half to the brothers and sisters of such intestate, or their legal representatives, and one-half to the brothers and sisters of the deceased husband or wife from whom the estate came.

This section does not refer to section 4159 for the mode of descent, but for the mode in which the property had been acquired, and, for property so acquired, fixes, the descent by language of its own, that is plain and unambiguous; for the words, brothers and sisters,” have in law a definite meaning; they include brothers and sisters of the half, as well as of the whole, blood. On a mere conjecture that the legislature meant that the property should go according to-the rules fixed by the section under which it had been acquired by the deceased relict, the court has rejected the plain meaning of the words adopted in the section fixing its descent, and substituted the language of the former section; that is to say, the section fixing the descent of non-ancestral property, although, as a matter of fact, the legislature treats it as quasi ancestral property, in sending one-half of it back to the brothers and sisters of the deceased consort from whom the estate* came. We fail to appreciate the suggestion of counsel that this interpretation is more in accordance with the sentiments of natural affection. That the rules of descent are, as a general rule, adopted in analogy to the natural affections, is true. But what ground is-there for saying that this must have been the principle upon which the provisions of section 4162 were adopted in providing for a descent of property from an intestate relict to the brothers and sisters of the deceased consort from whom the estate came. In such case there is supposed to be no blood relationship whatever; so that there is no ground for assuming that such deceased relict, the person who died possessed of the property, would perfer brothers and sisters of the whole, to brothers and sisters of the half blood. -Being strangers to his or her blood, it -would be a matter of mere accident whether either were perferred, and that accident might as readily have determined the relict to prefer the half to the whole blood. So that the analogy of the natural affections wholly fails, so far as this statute provides for the descent of property from a deceased husband or wife to the brothers and sisters of the deceased consort, from whom the'estate came; and, this being the case, the court should have given effect to the plain meaning of the language in which such descent is provided for.

Dickman, J., concurs in this dissenting opinion.


source: Caselaw Access Project

author: By The Court:

license: Public Domain

text:
    Casey et al. v. Painter.

      Intoxicating liquors—Notice to dealer in—What is sufficient to charge.

    (Decided October 10, 1893.)
    Error to the Circuit Court of Fayette county.
    The action below was by a wife under §4357, Revised Statutes, to recover damages for an injury to her means of support, caused by the unlawful sale of intoxicating liquors to her husband by the defendant below. The notice required by the subsequent section, to liquor dealers, was filed with the township clerk of Union township, in the county, and the sales were made by the defendants at their place of business in the city of Washington, C. H., therein; but no such notice was filed with the corporation clerk of the city; and for this omission it is claimed that the"¡action will not lie.

      C. A. Palmer and J. J. Harper, for plaintiff in error.

      Mills Gardner, for defendant in error.
   By The Court:

Under section 4357, Revised Statutes, a notice filed with the township clerk is notice to a person selling liquors in a municipal corporation within the territorial limits of the township, though not filed in the office of the clerk of the municipal corporation.

Judgment affirmed.


author: Spear, J.

text:
    Clapp et al. v. Banking Company et al.

      Assignments for benefit of creditors—Partnership and individual' assets in hands of same assignee— When may be treated as one trust—Exceptions to account of assignee—Jurisdiction of probate court—Written instruments—When may be varied by parol' evidence.

    1. Where, in the probate court, two assignments for the benefit of’ creditors, one executed by a partnership and the other by one of' the partners individually, to the same assignee, are being administered, it is proper for such court to treat the two as one trust where necessary to the adjustment of the conflicting claims of creditors entitled'to the trust fund.
    2. Where such assignee has allowed the claim of a partnership creditor as valid against the estate of the individual partner, but has placed an endorsement thereon postponing it to a claim which he has allowed as a preferred claim because, in form the latter appears to be a debt created by the individual and not by the firm, and has filed a report and settlement of his accounts, accordingly, and exceptions are filed by the first-named creditor on the ground that the debt so allowed as preferred, is in fact a firm, and not an individual debt, and, therefore, not entitled.to a preference, the probate court has jurisdiction to hear such exceptions and determine the question thus raised.
    3. As a. general rule, it is not competent to vary the terms of a written instrument by parol testimony. But this applies only to controversies between the parties to the instrument and their privies. In a suit between third persons, strangers to the instrument, or between a party to the instrument and a stranger,, such evidence is admissible.
    (Decided October 31, 1893.)

      Error to the Circuit Court of Huron county.
    Prior to December 15,1884, William T. Bowen and Joel M. Tuttle had been doing business as partners. On the above-named date two deeds of assignment in trust for the benefit of creditors were executed to Walter W. Bowen and George W. Suhr, pne jointly (though not in the firm name), by William T. Bowen and Joel M. Tuttle, and the' other by William T. Bowen alone.. Tuttle had no property or means but such as he had invested and held in the firm. Bowen had real estate in his individual name. The assignees treated the assignment made by Bowen and Tuttle as that of the firm only, and filed their accounts of that trust separately from that of W. T. Bowen.
    The plaintiffs in error are creditors of the firm; the Huron County Banking Company claims to be the individual creditor of W. T. Bowen.
    Claims exceeding $8,000 in amount, including those of plaintiffs in error, were allowed against the Bowen and Tuttle trust, and, after payment of costs, etc., a dividend of over four per centum was ordered paid.
    The reports of the assignees to the probate court showed the allowance by them of the accounts of the plaintiffs in error as valid claims against the' trust of W. T. Bowen, and an attempt, by an indorsement on the accounts, to subordi-. nate them to claims of individual creditors of W. T. Bowen. Among the latter class had been allowed a claim of The Huron County Banking Company, upon a cognovit note, of which the following is a copy:
    “$4,000. Norwark, O., Nov. 3, 1883.
    “Six months after date, for value received, we jointly and severally promise to pay to the order of the Huron County Banking Company, Norwalk, Ohio, four thousand dollars, at the office of said bank in Norwalk, Ohio, with interest at 8 per cent, per annum, payable quarterly in advance.
    “We hereby (without the power of revocation) authorize S. A. Wildman, Esq., or any attorney at law, to appear for us, or either of us, in any court of competent jurisdiction, at any time after the 6th day of May, A. D. 1884, and then and there waive process and notice, and confess judgment in the proper action against us, of either of us, in favor of the Huron County Banking Company, or assigns, for the sum due (when judgment shall he confessed) on the above demand, and for costs of suit, and then and there release all errors.
    “Executed this 3rd day of November, A. D. 1883.
    W. T. Bowen, [seal]..
    J. M. Tuttle, [seal].”
    To the reports thus made to the probate court, and the settlements of the assignees upon the basis thus indicated, the plaintiffs in error filed in that court their exceptions and motion, upon the ground that the account did not include a large amount of money held by the assignees and justly subject to the claims of firm creditors; that the note held by the banking company was in fact a debt of the firm, and not the individual debt of W. T. Bowen, and therefore was not entitled to priority in the distribution of the individual assets of W. T. Bowen, and that the accounts of both trusts, being in the hands of the court for settlement, should be settled together, and that it was the duty of the assignees to apply the fund held by them over and above paying claims actually having priority, in satisfaction pro rata of the claims of firm creditors.
    , A trial was had in the probate court and an appeal taken to the cqmmon pleas. At the trial in that court plaintiffs in error offered evidence tending to show that the note was in fact a debt of the firm, which evidence was rejected. The court also held that it had not jurisdiction to try the question whether or not the note is a valid claim against the estate of W. T. Bowen, individually, or against the firm of Bowen & Tuttle, because the probate court had not jurisdiction, and overruled the exceptions, and confirmed the assignee’s report and settlements. On error to the circuit court this judgment was affirmed.

      G. T. & C. H. Stewart, for plaintiffs in error.
    The two assignments were practically one trust. This fact makes the case analogous to that of Braman v. Purcell, 41 Ohio St., 187.

      The two deeds of assignment were executed at the same time, by the same parties assigdors, to the same parties assignees. Hence they are to be treated as one instrument. Commercial National Bank et al. v. Cincinnati National Bank, 3 Circuit Court Rep., 515.
    It is claimed by defendants in error, and was so held by the common pleas, that the probate court had no power tO' revise the report of claims allowed, made by the assignees and that parties objecting must go outside and proceed by independent action, in the court of common pleas, under §6352 and §6353, of Revised Statutes. This was affirmed by the circuit court. This is the fundamental error of the courts below. Mannix, Assignee v. Purcell et al., 46 Ohio St., 139; Morice v. Bishop of Durham, 9 Ves., 400.
    In one sense, all creditors whose claims have been duly presented to and allowed by the assignee of an insolvent debtor, who has made a general assignment for the benefit of creditors, and who were creditors at the date of the assignment have thereby gained a lien on all assets of the trust in the hands of the assignee, as against the assignor, future creditors, and others claiming under him. Briggs v. Davis, 21 N. Y., 574; Dwight v. Overton, 35 Tex., 890: Sayler v. Simpson, 45 Ohio St., 142; Dindeman v. Ingham, 36 Ohio St., 1, 17; Wrightman v. Bettinger, Assignee, 2 Ohio C. C. R., 382; In the Assignment of Edward Purcell and John B. Purcell, 15 Weekly Law Bul., 311.
    But if true that the probate court was limited in the exercise of its equity powers on the question, surely the court of common pleas was not. That court erred then in holding that its jurisdiction here was bounded by that of the probate court. Revised Statutes, §6407; 45 Ohio St., 142.
    The money was obtained from the bank for the benefit of the firm, was applied exclusively to it, and upon paper signed by the two partners on their joint act and obligation, with power of attorney added, for a joint judgment against them; and there was no pretence that either signed as surety for the other, but there was direct proof to the contrary. Carson et al. v. Byers et al., 25 North-West Rep., 826; Hoeflinger v. Wells, 3 N. W. Rep., 589 ; City Bank of New

      Haven's Appeal, 7 Atl. Rep., 548; Beninger v. Hess, 41 Ohio St., 65; National Bank of Dayton v. Little, Assignee, 4 Ohio C. C. Rep., 195; Pitt v. Spotts, 9 South-East Rep., 501; Fritche v. Liddell, 9 Am. Law Rec., 309; Collier et al. v. Hanna et al., 17 Atl. Rep.. 390, 1017.
    1 John A. Willia77ison, and Chas. P. Wickham, for defendant in error, The Huron Count}*- Banking Company.
    The statute points out the way specifically in which claims shall become established as debts against the estate in the hands of the assignee, either by the allowance of the assignee, or in case of disallowance, by suit to be brought within 30 days and the recovery of a judgment against the assignee, that he allow the claim. Revised Statutes, of Ohio Sec., 6352.
    The manifest contemplation of section 6352, Revised Statutes, is that the action therein provided, for establishment of a claim disallowed, shall be a separate and independent action, wherein a judgment is to be rendered, either for the allowance or rejection of the claim. Kennedy v. Thompson, assignee, 3 Ohio C. C. Rep., 446.
    In our opinion a clear cut and well defined distinction should always be maintained between this equity power of the probate court (specially given by statute) to marshal liens on assets, and the absolute want of any power or authority of determining in any case what is or is not a 'debt, for the purpose of establishing or rejecting a claim as a debt against the assets.
    The liability of a member of a partnership is not a joint and several one, where there are assets belonging to the firm, but rather that of surety. The firm debt in such a case is not the debt of a partner, but only a contingent liability which may be enforced in case the firm assets, on being exhausted, are insufficient; and conversely the partnership stands in a similar relation to the personal debts of the individual partners. Rogers v. Meranda et al., 7 Ohio St., 179 ; Brock et al. v. Bateman et al., 25 Ohio St., 600;
      Norwalk National Bank v. Sawyer, 38 Ohio St., 339; Page v. Thomas, 43 Ohio St., 38.
    In the absence of any allegation of fraud or mistake, (and there is no such allegation here) it is not permissible to vary the terms of a written instrument by parol, or to show a collateral parol agreement attaching modifications. Mayer v. Goldsmith, 26 Ohio St., 33 ; Denton v. Whitney, 31 Ohio St., 89; Bank v. Cook, 38 Ohio St., 442; Cummings v. Kent, 44 Ohio St. 92; Robinson v. Kanawha Valley Bank, 44 Ohio St., 441; Peterson v. Roach, 32 Ohio St., 374.
    But granting for the argument’s sake that it is competent to thus modify the terms of a written instrument; ■ yet, under the rule in Ohio, though money is borrowed by a partner for the use of a firm, and is turned over to the firm with a knowledge of the lender, it does not bind the firm, but the maker of the note. Peterson v. Roach, 32 Ohio St., 374; Norwalk National Banker. Sawyer, 38 Ohio St., 339.
   Spear, J.

The first question presented by the record is whether or not the probate court had jurisdiction to determine the question raised by the exceptions, viz.: Whether or not the $4,000 note was a claim against the partnership of Bowen & Tuttle. If that should be determined in favor of the jurisdiction, then would follow the further question as to the admissibility of the evidence offered by the plaintiffs in error at the trial in the common pleas tending to establish their exception that the note was a debt of the firm, notwithstanding the form of the note.

Had the probate court jurisdiction? It is important, at the outset, that the precise character of the exception be understood. It is not that the note is allowed as a claim against W. T. Bowen, for no one questions the validity of the claim; nor is it that the accounts of the plaintiffs in error are allowed as claims against the trust of W. T. Bowen, subject to the priority of claims of persons who are .actually individual creditors as contrasted with- firm creditors, but the real question is whether or not the assignees could, by the form of allowance, determine finally the order in which the several claims should be paid, so that the probate court, in settling their accounts, could not, under any state of facts, entertain jurisdiction to hear and determine that question.

On the part of the banking company it is urged that the action of the assignees was, in effect, a rejection of the claims of the plaintiffs in error, and that their only remedy to avoid the result of that rejection was to proceed under section 6352, Revised Statutes, to compel an allowance of the claims. This, does not seem to us tenable. As already stated, the complaint is not that the assignees rejected the accounts as claims against W. T. Bowen, for, in fact, they did not, and it would seem to be a full answer to a petition charging such rejection that the accounts were in fact allowed. The question has not before been presented in this court, but it was involved in the case of Wrightson v. Assignee of Helmick, determined by the circuit court of Hamilton county, reported in 2 O. C. C. Reports, 381, by Smith, C. Jf. The case was disposed of upon other grounds, but the court expressed a serious doubt whether such action could be maintained under section 6352, and indicated a clear opinion that, if it could be, the court should only decide such a question when the proper parties, those interested in the question, are before the court.

The language of section 6352 limits the right of action to cases where the claim has* been rejected. The section gives no other relief than that the assignee allow the claim., It makes no provision for bringing in other parties than the assignee, nor for adjusting contending claims of creditors, and it is not easy to see how, applying ordinary rules of construction, the language could be held to authorize, much less require, the determination of questions other than that of whether or not the claim should be allowed.

It is further contended that, in order to challenge the priority of the claim of the banking company, the plaintiffs in error should have given bond, as contemplated by section 6353, and thus required the company to resort to a proceeding to determine the question of priority. This section authorizes the determination of .the same question as that put in issue in an action under 'the preceding section, and between like parties, and none other, viz.: the allowance, or disallowance, of the claim, in a contention between the plaintiff creditor and the assignee, and without the presence of other parties interested. But, as before suggested, the allowance of the claim was not the ground of complaint in this case, for the note was, admittedly, a valid claim against the estate of W. T. Bowen, and it is not perceived that the provisions of section 6353, any more than those of the preceding section, would give opportunity for determining the priority of the conflicting claims, which was the relief desired.

The further contention of the banking company, on this point, is that the probate court can have no jurisdiction except as given by statute; that the only equity jurisdiction of that court respecting matters in insolvency, is given by the first clause of section 6351, which directs that that court “shall order the payment of all incumbrances and liens upon any of the property sold, or rights and credits collected, out of the proceeds thereof, according to priority; ” that the power to determine priorities is, in its nature, equitable, and that, as there never was an original equity jurisdiction in insolvency in that court, it follows that we cannot impute any jurisdiction over the matter in investigation. In other words, the power to determine priorities between creditors of a firm and of an individual member rests alone in the assignee, subject only to review by the court of common pleas in the manner pointed out by the sections of the statutes hereinbefore referred to.

But is it certain that the clause of section 6351, above quoted, does not confer the jurisdiction ? In general, the word lien implies a hold or claim upon property for some debt or charge. “The term lien,” says Whittaker, in his work on Riens, 1. “ as adopted by our courts of law and equity, and as used by our legal writers, differs in the extent of its acceptation. In that which is most extensive, it applies to every case in which either real or personal property is charged with the payment of any debt or duty; every such charge being denominated 1 a lien on the property.’” It is also defined in Jac. Raw Diet, title Rien, as “an obligation, tie or claim, annexed or attaching upon any property, without satisfying which such property cannot be demanded by the owner.” And in 13 Am. & Eng. Ency. of Raw, 608, it is said that “ an equitable lien is a right not recognized at law, to have a fund or specific property, or its proceeds, applied in whole or in part, to the payment of a particular debt or class of debts.” Giving effect to these definitions, does it not appear that the language of section 6353 may apply to the question in issue? It was held, in Haskins v. Alcott, 13 Ohio St., 210, that the assignment “devotes all the property covered by it to the creditors presenting their claims in pursuance of the statute.” And in Lindemann v. Ingham, 36 Ohio St., 12, 13, after reciting the various provisions regarding the making and settlement of assignments, including section 6351, this court, by Oicey, J., says: “ These provisions show very clearly that the legislature intended to vest in the probate court full and complete jurisdiction over the whole subject of assignments of this character. True, the court is so organized, as to render it impracticable that it should exercise jurisdiction in actions for money against the debtors of the assignor. It is also true, that where the real estate assigned is encumbered with liens, the assignee may file a petition to sell the same in the court of common pleas. This provision was made because of the complex questions which are sometimes presented in regard to liens on real estate, embracing, as they do, questions as to liens by mortgage and judgment, liens by execution foreign and domestic, vendor’s liens, mechanic’s liens, liens of occupying claimants, and others. But even questions of this character may be determined in the probate court.

“The express exception that the petition, in the case just mentioned, may be filed in the court of common pleas, affords additional evidence that the legislature intended that in all other respects the jurisdiction of the probate court, in the administration of the trust, should be exclusive, though not final, for there is the right to appeal or prosecute error.”

If “ the assignment devotes all the property to the claims of creditors,” and if “ the legislature intended to vest in the probate court full and complete jurisdiction over the whole subject of assignments,” save where jurisdiction is expressly lodged elsewhere, it would seem reasonable to conclude that the term “lien,” in section 6351, was intended to be understood in its extended sense, and that, by virtue of that section, the jurisdiction of the probate court is not limited to a determination of specific, statutory liens, but extends to equitable liens of whatever character, which may be involved in controversies between creditors, and hence it may determine priorities between the several creditors to the fund out of which distribution is to be ordered. See, also, the opinion of Wirrrams, J., in Sayler v. Simpson, 45 Ohio St., 144.

But if, for the sake of the argument, we assume that the language of that section does not, in terms, expressly confer the jurisdiction, does it follow that such power is wanting? Although the probate court is of limited and statutory jurisdiction, it is, we think, a mistake to suppose that it has no equity powers unless the same are expressly conferred. A power given to make a particular order implies authority to hear and dispose of all questions which it is necessary to have settled before the making of such final order, unless the needed authority is distinctly denied.

An examination of other sections of the gtatute would indicate that the necessary authority is fairly to be implied. Section 6356 requires that an account shall be filed in the probate court by the assignee, containing a full exhibit of all his doings as such, up to the time of the filing thereof, to-which exceptions may be filed by parties interested, and such accounts shall be examined, and the exceptions thereto heard by the court, and whenever, on settlement, the same shaE show a balance remaining in the hands of the assignee, subject to distribution among the general creditors, a dividend shall be declared by the probate judge, payable out of such balance equally among all the creditors entitled. The ultimate order is this distribution among general creditors. If any disputed question arises before the making of the order, necessary to be settled in advance, the probate court would seem to be the tribunal authorized to hear and dispose of it; at least this would be so unless the power is expressly denied, or some other procedure pointed out for its settlement. No denial of jurisdiction to entertain the question in dispute here is found in the statute, nor is any other procedure therein indicated.

Now, in order to ascertain what, amount is in the hands of the assignee subject to distribution among general creditors, it is necessary that the fact of who are general, and who preferred, creditors, should be first ascertained. This involves the very matter in dispute in this case. The court must necessarily decide whether there are preferred creditors, and who they are. No distribution among general creditors can be made until this is done. To make such final orders in a case like the present, the court must ascertain who are creditors of the firm, and who of the individual member, and when that question is in dispute, its solution is a necessary step to the making of the final order. It would seem, therefore, that upon this ground the jurisdiction of that court to determine the question of priorities as between creditors of the firm and of the individual members, may be maintained. If such jurisdiction exists in the probate court it also exists in the common pleas on appeal, and this is so irrespective of the provisions of section 6407, allowing appeals, which directs that the appeal shall be tried and determined in the same manner as though the common pleas had original jurisdiction.

Our conclusion is, we think, sustained by the holding of .this court in Owens v. Ramsdell, 33 Ohio St., 439. A creditor brought action under the statute, now section 6352, against an assignee of an insolvent, whose estate was being settled in the probate court of Cuyahoga county, to compel an allowance of his claim. He had, before bringing the suit, presented the claim to the assignee who refused- to indorse an unqualified allowance. The refusal was based, not upon any denial of the justness of the claim, but because it had not been presented within six months after notice of appointment, and because a dividend had been made and paid, and it was averred that the assignee had offered to alio w the claim without prejudice to the dividend. The court, by Day, J., held that payment of a dividend was not of importance; that the plaintiff was “entitled to have his claim allowed, in the settlement of the trust, for whatever, under the direction of the probate court, it might.be entitled to. At most, the offer of such qualified allowance by the assignee, could affect only the question of costs, and not the plaintiff’s right to a judgment against the assignee for an unqualified allowance of the claim. Such an allowance would determine nothing more than that the claim should be allowed and not rejected in the settlement of the trust. How it should be disposed of in the settlement of the trust, as we have said, was a matter to be determined, not in this case, but by the tribunal having jurisdiction of the settlement of the trust.” And the court’s syUabus holds: 1. “That in a suit pursuant to the statute for the allowance of the claim, the creditor was entitled to a judgment against the assignee that he allow the same in the settlement of the trust. 2. That the offer of a qualified allowance of the claim by the assignee affected the question of costs only, and not the creditor’s right to an unconditional allowance of his claim. 3. That the disposition to be made of the claim so allowed was not to be determined in such suit, but must be controlled by the tribunal having jurisdiction of the settlement of the trust.”

The effect of this holding is that the assignee had not, but the court in which the trust was being administered had, the power to determine what claims, if any, had priority, and that, in the case at bar, the effort of the assignees to usurp the office of the court was wholly without authority. And as the assignee had the power to allow the plaintiff’s claim, which they did, but were without power to adjust priorities, it was proper for the plaintiff to assume that the claims had been allowed, and to disregard the further action of the assignee regarding them as a nullity.

The objection to the admissibility of the evidence offered by plaintiffs in error at the trial in the common pleas was on the ground that the note in controversy was joint and several in its terms, the individual undertaking of W. T. Bowen and J. M. Tuttle, and that the offer was to give evidence extrinsic to the instrument itself, and thus vary and modify its terms without contradicting it.

Assuming, without holding, that the evidence offered does tend to vary and modify the terms of the contract, we think it should have been received. It is not intended to dispute the general proposition of the inadmissibility of parol evidence to vary the terms of a written instrument. But the question always involves a consideration of the parties. As between the parties to the instrument, such evidence, in the absence of fraud and mistake, is inadmissible. Not so, however, necessarily when the rights of third parties are involved. Says Prof. Greenleaf in his work on Evidence, section 279 : “"The rule under consideration is applied only (in suits) between the parties to the instrument; as they alone are to blame if the writing contains what was not intended, or omits that which it should have contained. It cannot affect third persons, who, if it were otherwise, might be prejudiced by things recited in the writings, contrary to the truth, through the ignorance, carelessness, or fraud of the parties; and who, therefore, ought not to be precluded from proving the truth, however contradictory to the written statement of others.”

The rule is well founded, and rests on principle and convenience. So also, as we think, does the exception. The parties to the instrument have constituted that the medium for expressing their purpose and compact, and they may well be held estopped to deny the compact so long as the same is in force. If either claims that the paper, by reason of fraud or mistake, does not express the true intent and agreement of the parties, he can have, in a proper action, the means of setting it aside or reforming it. But strangers have not assented to the compact, nor can they be heard in a proceeding to set aside or reform it. Hence they are at liberty to show that the written instrument does not disclose the true character of the transaction. And this right could not be denied in a case where the opposite party is a party to the instrument.

' And the exception to the general rule is fully recognized bj7 text-writers and in many adjudicated cases. 1 Poth. on Ob., 506; Overseers v. Overseers, 10 John., 229; McMaster v. Insurance Co., 55 N. Y., 222 ; Brownsr. Thurber, 77 N. Y., 613; Krider v. Lafferty, 1 Wharton (Pa.), 314; Johnsons. Blackman, 11 Conn., 351; Tobey v. Leonard, 2 Clifford, 40; Edgerly v. Emerson, 3 Foster (N. H.), 555; Talbot v. Wilkins, 31 Ark., 411; Reynolds v. Magness, 2 Iredell (Raw), 26; Smith v. Moynihan, 44 Cal., 53; Hussman v. Wilke, 50 Cal., 250; Cunningham v. Milner, 56 Ala. 522.

In the present case the evidence offered tended to show that the money received upon the note was obtained from the bank for the benefit of the firm, was credited to the firm on the bank book, and was applied exclusively to the firm’s use; that the parties understood at the time that the transaction was a firm, and not an individual, transaction, and that neither member had any interest in the consideration other than as á member of the firm. Had the excepting creditors succeeded in establishing that the note was a firm obligation in fact, then the banking company’s claim and their claims as to the balance due, would have stood upon an equality, and all would have had ah' equal right to pro rata distribution of the assets of the assignment of W. T. Bowen. True, there were, in form, two assignments. But the assignees were the same, and the creditors the same, and no good reason is apparent why the court should not, for the purpose of disposing of the question made by the exceptions, have treated the two as one trust.

The judgment of the circuit court will be reversed, and the cause remanded to the common pleas for further proceedings in accordance with this opinion.