Coleman v. Foster , 112 Ala. 506 ( 1895 )

McCLELLAN, J.

Fannie Julia Scott inherited the property involved in this cause from her mother, and died Avithout issue and Avithout brother or sister of the full blood, but leaAdng a half brother, the son of her father by a second Avife. Her father’s death preceded hers. B. W. Coleman is the son of her mother’s sister. The only question presented for revieAV by. the brief of appellant’s counsel is Avliether decedent’s half brother, John Scott, or her cousin, B. W. Coleman, inherits this estate, the former being related to the intestate in the second degree, but not through her mother through Avhom the estate came to her, and the latter in the fourth degree through her mother. Our statutory provision bearing on this question is as folloAVS : “There is no distinction made between the whole and the half blood in the same degree, unless the inheritance came to the intestate by descent, devise or gift, from or of some one of his ancestors ; in which case, all those who are not of the blood of such ancestor, are excluded from the inheritance, as against those of the same degree.” — Code of 1886, § 1919. (The italicization is ours.) In construing this section, this court has passed upon the precise question involved in the present case, and held that the exclusion from inheritance of kin by the half blood provided for in the statute obtained only in respect of such kin in the same degree as those claiming the inheritance by kinship in full blood. We see no way of escape from this construction without doing violence to the manifest general purpose of the laAV-makers to put kinship by the whole and half blood upon the same footing in respect of capacity to inherit, with the single exception provided in this statute, or without denying all force and meaning to the concluding words of the section, limiting the exception it makes to relations by the half blood of the same degree. We, therefore, re-affirm the decision in Cox v. Clark, (98 Ala. 400) ; and upon the authority of that case, the decree in this one must be affirmed.

Affirmed.

Coleman, J., not sitting.