Opinion of the Court.

"Third. If such intestate leaves no husband or wife, relict to himself or herself, the estate shall pass to the brothers and sisters of the intestate. of the whole blood, and their legal representatives; "Fourth. If there are no brothers or sisters of the intestate of the whole blood, or their legal representatives, the estate shall pass to the brothers and sisters of the half blood, and their legal representatives;

"Fifth. If there are no brothers or sisters of the intestate of the half blood, or their legal representatives, the estate shall ascend to the father; if the father is dead, then to the mother;

"Sixth. If the father and mother are dead, the estate shall pass to the next of kin, and their legal representatives, to and of the blood of the intes

tate."

Section 4160, Revised Statutes, provides when real estate shall pass to husband or wife; and when to next of kin of intestate. Section 4161 provides when real estate shall pass to the children of the former husband or wife. Section 4162, Revised Statutes, provides for the descent of an estate which came by a former husband or wife, and Section 4163, Revised Statutes, provides for the distribution of personal estates.

Cliver v. Sanders, supra, does not decide merely that a brother of the half blood of the ancestor is preferred to half-brothers and sisters of the intestate, but also that when, in the statute relating to ancestral estates, the words "brothers and sisters" are used without qualification they include the halfbrothers and half-sisters of the ancestor. The opinion of the learned chief justice is a demonstra

Opinion of the Court.

tion of the correctness of that conclusion; but for the conclusion that the words included halfbrothers and sisters, the half-brother would not have inherited, and the question of preference would have disappeared.

About the only substantial difference between Section 4158, Revised Statutes, and the statute then under consideration is in the addition of the second subdivision, and in the addition of the provision for the husband or wife in the fifth subdivision, which was the fourth subdivision of that act. In the opinion Swan, C. J., says: "Under the decisions above referred to, half-brothers of an ancestor are included in and designated by brothers, wherever that term is used without limitation. We do not perceive anything, in the terms or context of the statute under consideration, to control, or limit this general meaning.

"Half-brothers of the ancestor of the intestate are of the blood of such ancestor, but not of the whole blood. Half-brothers of the intestate may not have one particle of blood of the ancestor of the intestate in their veins. Now, the statute in cases where an estate came by gift, devise, or descent, from an ancestor to an intestate, undertook to proIvide for the descent of the estate to the relatives of the intestate, and to the relatives of his ancestor, from whom the estate came; and in so doing, had to deal with half-brothers and sisters of the ancestor, and with half-brothers and sisters of the intestate who were, and who were not, of the blood of such ancestor. The general assembly have used the words brothers and sisters, of the whole or the half-blood, more frequently than was

Opinion of the Court.

necessary to give meaning to their words, in the second subdivision of the section of the law under consideration, inasmuch as the words 'brothers and sisters of the blood of the ancestor,' in that subdivision, would include brothers and sisters of the half-blood. But this was, no doubt, to explain what they meant by the words, 'brothers and sisters who may be of the blood of the ancestor;' knowing that, under the English law, half-brothers could not inherit real estate, and, for all practical purposes of descent, were not deemed the kindred of the ancestor. This probably being the reason why half-brothers and sisters are unnecessarily mentioned in the second subdivision of the section, it affords no ground for treating the words, 'brothers and sisters of the ancestor,' in the fourth subdivision, as being limited to brothers and sisters of the whole blood. Indeed, in the third and fifth subdivisions of the section, the words, 'brothers and sisters,' are used to mean brothers and sisters of the whole and half-blood."

In Brower et al. v. Hunt et al., 18 Ohio St., 311, it is held, under Section 2 of the act of 1857, relating to non-ancestral property, that property which had come from a deceased husband to his widow, descended upon her decease without issue and intestate, to her brothers and sisters, and not as ancestral property, as there contended, to the brothers and sisters of the deceased husband under Section 1 of that act. The supplemental act of 1877 (Section 4162, Revised Statutes), under consideration in Stembel et al. v. Martin et al., supra, was enacted to remove the apparent or supposed hardship and injustice resulting from the statute

Opinion of the Court.

as so interpreted. The supplemental act provides that in such event one-half of the estate shall descend to the brothers and sisters of the intestate, or their legal representatives, and one-half to the brothers and sisters of such deceased husband or wife, or their personal representatives. The question then arose whether the words "brothers and sisters," in the supplemental act, included those of the half blood. Williams, J., says: (519) "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 brothers and sisters shall take the property descending under its provisions." The conclusion was that the supplemental act was to be construed as if it read shall descend, "as provided in said second section," that is to brothers and sisters of the whole blood, and their legal representatives,. and if none, then to those of the half blood. There is nothing in the decision, or in the opinion, in that case that in any manner affects the decision in Cliver v. Sanders, supra. In addition to the cases

Opinion of the Court.

cited, as holding that half-brothers of an ancestor are included in the word "brothers" wherever used without limitation, see the cases cited by counsel for plaintiffs in error in Stembel et al. v. Martin et al., 50 Ohio St., 495-496, and in 27 Am. & Eng. Ency. Law, 312, and in Woerner, The American Law of Administration, *145.

It is also said that if Charles Stockton never had been born, the estate would have descended to the brothers and sisters, or their legal representatives, of B. N. Stockton, of the whole blood in preference to those of the half blood. That is true, but in that event it would have been non-ancestral property and would have passed under Section 4159, Revised Statutes. It would have descended as the estate of B. N. Stockton. It did descend as his estate to Charles Stockton, who might have disposed of it, but he dying seized of it, intestate, it now descends as his estate and not as that of his father. Freeman and wife v. Allen et al., 17 Ohio St., 527, was a contest between children of the first, second and third wife of the father, over the division of the lands that descended from the father to two of the children who died intestate, and it was held, "That, under the act regulating descents, so much of the estate as came to the intestate by descent, passed to his brothers and sisters of the blood of the ancestor from whom the estate came, whether they were of the whole or half blood of the intestate; but the remaining part thereof, which came to him by purchase, passed to his brothers and sisters of the whole blood only."