Fowler v. Trewhit , 10 Ala. 622 ( 1846 )

ORMOND, J.

The statute of descents decleres, “that “ where there shall be no children, or descendents, of them, or any of them, and no brothers or sisters, or descendants of them, or any of them, (the estate shall descend) to the father if he be living, if not to the mother of the intestate.” [Clay’s Dig. 168, § 2.] And this statute applies equally, whether the property be real or personal. [Ib. 191, § 1.]

By this statute, the English rule, that property cannot ascend to the parents of the deceased, but will descend in preference to remote collateral relations, has been abrogated, and the rule established, that where there are no brothers, or sisters of the deceased, or descendants of such, the father first, and then the mother, are capable of inheriting from their child. In this case, the child of the plaintiff, upon the death of its grandfather, became one of his heirs at law, representing, in virtue of another provision of the statute, its deceased mother ; and upon the death of this child, its father, the plaintiff in error, by force of the provision of the act previously cited, inherited its portion of its grandfather’s estate, and was consequently entitled to share in its distribution, and the court erred in refusing to let him in as a distributee.

But although the court erred in this refusal, it cannot be redressed in this mode. The petition of the plaintiff in error, to be admitted to a share in the- distribution, was a preliminary step to any interference on his part, in the matter, and until his claim is recognized, he is a stranger to the proceeding, and cannot therefore be admitted to prosecute a writ of error. His remedy was by a certiorari to the circuit court, by which the order dismissing the petition would have been reversed. Upon this point, the case of Graham v. Abercrombie, 8 Ala. 566, is precisely analagous. See also, McRae v. Pegues, 4 Ala. 158.

The consequence is, this writ of error having been improvidently sued out, must be dismissed.