Opinion
No. 34661
Decided May 23, 1956.
Descent and distribution — Section 10503-4, General Code, construed — Uncles and aunt nearest relatives of decedent on maternal side — First cousins once removed nearest relatives on paternal side — "Next of kin" not entitled to inherit, when.
APPEAL from the Court of Appeals for Franklin County.
This cause originated in the Probate Court as a proceeding to determine heirship. The decedent whose estate is here in question died intestate, leaving no spouse, no children or their issue, no parents, no brothers or sisters or their issue, no grandparents, or no great-grandparents. The nearest surviving relatives on decedent's maternal side were lineal descendants of his maternal grandparents, i. e., two uncles and an aunt. On decedent's paternal side there were no lineal descendants of paternal grandparents but there were grandchildren of decedent's paternal great-grandparents, i. e., first cousins once removed.
The statute of descent and distribution in effect at the time of decedent's death was Section 10503-4, General Code (116 Ohio Laws, 388). Subdivisions 7 and 8 thereof, the construction of which is involved herein, read as follows:
"7. If there be no such brothers or sisters or their lineal descendants, one-half to the paternal grandparents of the intestate equally, or to the survivor of them, and one-half to the maternal grandparents of the intestate equally, or to the survivor of them.
"8. If there be no paternal grandparent or no maternal grandparent, then such one-half to the lineal descendants, if any, of such deceased grandparents, per stirpes; if there be no such lineal descendants, then to the surviving grandparent or grandparents or their lineal descendants, per stirpes; if there be no surviving grandparents or their lineal descendants, then to the next of kin of the intestate. There shall be no representation among such next of kin."
The chart below illustrates the breakdown in subdivision 8.
The Probate Court held that the lineal descendants of the maternal grandparents of decedent, namely, his two uncles and an aunt, inherited the entire estate.
On appeal to the Court of Appeals, that court (one judge dissenting) reversed the judgment of the Probate Court and held that the lineal descendants of the maternal grandparents of decedent inherited one-half of the estate, and that the first cousins once removed (grandchildren of decedent's paternal great-grandparents) inherited one-half of the estate.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Graham, Graham, Gottlieb Johnston, for appellants.
Mr. John H. Summers, Messrs. Hamilton Kramer, Mr. Charles A. Eberly, Messrs. Maugan Vacca and Mr. Aaron J. Halloran, for appellees.
In the enactment of subdivision 8 of the above-quoted section, the General Assembly clearly intended to divide an estate between the two sides of a family only so long as there were surviving maternal or paternal grandparents or their lineal descendants; that, where there were no grandparents or their lineal descendants on one side, the one-half should go to the surviving grandparents or their lineal descendants on the other side; and that the next of kin should inherit only where there were no surviving grandparents or their lineal descendants on either side.
In the instant case, neither half passed under subdivision 7 of the section, since decedent had no grandparent living at the time of his death.
Under subdivision 8 of the section, since there were "no maternal grandparents, then such one-half [the one-half that would have gone under subdivision 7 to maternal grandparents, would pass] to the lineal descendants * * * of such deceased grandparents [the two uncles and an aunt who were the lineal descendants of the deceased maternal grandparents, appellants herein]."
As to the one-half that would have gone under subdivision 7 to the paternal grandparents, since there were no "lineal descendants" of such paternal grandparents to take, it is necessary, with regard to that half, to consider that part of subdivision 8 after the first semicolon. There being "no such lineal descendants [of the paternal grandparents], then [the one-half would go] to the surviving grandparent or grandparents [at this point there must be a crossover — since there were no paternal grandparents, "grandparents" could describe only maternal grandparents] or their lineal descendants." This must mean lineal descendants of maternal grandparents.
Subdivision 8 provided further, "if there be no surviving grandparents or their lineal descendants, then to the next of kin of the intestate." Since there were lineal descendants of grandparents, i. e., of the maternal grandparents, the provision for "next of kin of the intestate" cannot operate.
The judgment of the Court of Appeals is reversed and the judgment of the Probate Court is affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.