Bernhardt v. Bernhardt

18 Ohio C.C. Dec. 686, 7 Ohio C.C. (n.s.) 517

• Court: Hamilton Circuit Court
• Decided: February 10, 1906
• Status: Published

Opinion

GIFFEN, J.

This is an action in partition in which the plaintiff and the defendants, Pbillip Bernhardt, Barbara Ruehlmann, the brothers and sister, and the minor defendants, the children of a deceased brother of Catherine Schaefer, deceased, claim title to certain real estate as her heirs at law; the other defendants, Louis Schaefer and Lizzie Berberich, claim title as children of Ludwig Schaefer, the deceased hnsband of Catherine Schaefer.

Their claim is based: First, npon tbe allegation that the land in question was purchased with funds belonging to Ludwig Schaefer, and the title being vested in Catherine Schaefer, the wife, a resulting trust •was engrafted on the deed absolute; and if this be not found, that the-improvements npon the land were made with funds belonging to Ludwig Schaefer, and that a trust. resulted to the extent of such improvements; second, that Catherine Schaefer, having devised the real estate to her husband, who died prior to the death of the testatrix, they claim as the issue of such devisee, under Rev. Stat. 5971 (Lan. 9510).

While we are of the opinion that by a preponderance of the evidence it is shown that Catherine Schaefer furnished the purchase money for the land, and her hnsband, Ludwig Schaefer, the funds with which, the improvements were made, it may be conceded that all the funds were furnished by tbe hnsband and yet find that the title was in Catherine Schaefer. Counsel seems to assume that having shown that all the money was being furnished by tbe husband, tbe title was necessarily held in trust by the wife.

In the case of Creed v. Bank, 1 Ohio St. 1, the second proposition of the syllabus is as follows:

“When a person purchases property with his own funds, and places the title in the name of a stranger, the legal presumption is, that he made such purchase for his own use, and that the property is held in trust for him.

“But where such purchase and conveyance is made by a man to a member of his own family, the presumption is, that the property is intended as a gift or advancement.”

AVe think the evidence in this ease shows not only that Ludwig Schaefer knew that the conveyance had been made to his wife, but that he intended the title absolute to remain in her.

Revised Statutes 5971 (Lan. 9510), upon which the other claim is based, provides as follows:

“When a devise of real or personal estate is made to any child or other relative of the testator, if such child or other relative shall have been dead at the time of the making of the will, or shall die thereafter, leaving issue surviving the testator, in either ease such issue shall take the estate devised in the same manner as the devisee would have done, if he had survived the testator.”

The argument is, that the husband is a relative of the wife within the meaning of this section, and that the issue of such husband, although not the issue of the testator, take the estate devised in the same manner as the devisee would have done.

It has frequently been held in other states where a like statute exists, that the word “relation” includes only those related by consanguinity. In the case of Cleaver v. Cleaver, 39 Wis. 96, the first, proposition of the syllabus is as follows:

“In Sec. 29, Chap. 97, Rev. Stat. (which provides that ‘when a. devise or legacy shall be made to any child or other relation of the testator, and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given’), the word ‘relation’ includes only relations by consanguinity.

“2. The testator’s wife having died before him, a bequest made to her by the will lapsed, although she left issue which survived him. ’ ’

And at page 102 it is said:

“The words of the statute are, ‘child or other relation.’ Nosciiur a sociis. Child or other relation must signify child, or other relation of like character as a child; that is, other relation of the testator’s blood!”

A like construction of similar statutes will be found in Esty v. Clark, 101 Mass. 36 [3 Am. Rep. 320]; Renton, In re, 10 Wash. 533 [39 Pac. 145]; Keniston v. Adams, 80 Me. 290 [14 Atl. Rep. 203].

The statute in this state was construed in the ease of Phillips v. McConica, 59 Ohio St. 1 [51 N. E. Rep. 445; 1 Am. St. Rep. 753], the third proposition of the syllabus being:

“When a legatee dies before the testator, the legacy lapses unless such legatee was a child or other relative of the testator, and left issue surviving the testator as provided in Sec. 5971 [Lan. 9510] Rev. Stat. An adopted child is not such issue. ’ ’

At page 8 the court say:

“The word ‘issue’ in this section means child of the body, or heir of the body, of the deceased relative of the testator, and does not include a child adopted by such decedent. The issue in such case must be of the blood of the testator and of the deceased child or other relative by birth.”

Applying this construction of defendants, Louis Schaefer and Lizzie Berberieh, they are not of the blood of the testator, although the issue of the devisee by a former wife.

It must be admitted, however, that this construction is in conflict with the unreported case of White v. Agnew, 1 O. S. C. D. 644 (38 Bull. 47). But the express construction of a statute which is determinative of the issue in a case is of higher authority than that which is inferred only from the affirmance of a judgment without report.

We are of opinion, therefore, that the defendants, Louis Schaefer and Lizzie Berberich, have failed to show any title to the land, and a decree may be entered accordingly.

Swing, J., concurs.