Hithcock v. Smith , 3 Stew. & P. 29 ( 1832 )

Taylor, J.

The question presented by this record is, whether, under our statute of distributions, the brothers and sisters of the half blood, or the nephews and nieces of the whole blood/áre to be preferred.

The statute is, as follows: — “When any person shall die sjezed of any estate or inheritance, in lands, tenements, or hereditaments, not devised,'the same shall descend to his or her children, and their descendants, in equal parts; the descendants of the dé-ceased child or grand child to take the share of their deceased parent,.in equal parts among them; and when there shall be no children of the intestate, nor descendants of such children, then to the brothers and'sisters of the intestate, and their descendants, in equal parts; the descendants of a brother dr sister of the intestate to have, in equal parts among them, then-deceased parent’s share; and where there shall be no children, or descendants of them, orany of then?,then to the father, if he be living-, if not-, to the mother of the intestate; and if there be no children of the intestate, or descendants of’ such children, and no brothers or sisters, or descendants, of them, nor father, or mother, then such estate shall descend in equal parts to the next of kin of the intestate, in equal degree, computing by the rules of the civil law ; and there shall be no representation among collate-rals, except with the descendants of the brothers and sisters of the intestate;, and there shall in no case be a distinction between the kindred of the whole and half blood, except the kindred of the whole blood in equal degree, shall be preferred to the kindred of the half blood in the same degree.”

It would be improper, in this case, to enter upon a discussion and decision of the.questions which may hereafter arise under the statute, with regard to who shall take per capita, and who per stirpes. Although the argument of the counsel for the defendant in error has embraced this subject, we do not deem its consideration necessary to the determination of the point before us. There is a clear distinction maintained in the books, with regard to the place which descendants of preferred kindred, among whom the law recognizes the right of representation, shall occupy, as respects other kindred,-and as respects each, other. -By the common and civil law, in those lines of relationship, in which the jus representationes is recognized, different degrees of-kindred are acknowledged, as to each other, while the descendant, down to the remotest, generation, stands in the same degree with his ancestor, as to the person who last, died siez-ed. Thus the great nephew, who is in the third degree, is viewed as occupying the same degree_of kindred with his grandfather, and is preferred to the uncle, who is in the second. By being in the .same degree with their ancestor, is simply meant, that they will be preferred to all .other lines, though persons in them may actually be nearer of kindred than they are. ■ If the jus representationes were expunged from our rule of descents, and estates distributed among'those actually next of kin to the person last'siezed; it would produce a great change in our law. The father’woukl take with the children, and in preference to the grand-children; the uncle with the nephew, &c. ' By the civil law 1\\q jus re-presentationes. is. not acknowledged among collaterals, further than in the children■ of brothers,and sisters, but our law extends it, to all their descendants. By the. civil law, therefore, if there were no descendants of the persdn last siezed, nor brothers or .sisters, nor children of brothers or sisters, the estate would descend to the* next of kin,literally. That is, the-right of those nearest in degree, would be acknowledged in preference to the more remote descendants of the nearer kinsman. For instance, the nephews andmieces ■would entirely exclude the great nephew's and great nieces; and the uncles and aunts would exclude them also. But by the common law it is different. That, requires that every- preferred line shall be exhausted, before another shall be resorted to. For example, as the brothers and sisters are preferred to the uncles and aunts, the latter shall not. take, so long as one descendant of the former can be found, to the remotest generation. Thus, if there be a great-ne.phew, he shall take in' preference to the uncle; although, by the common rule of computation, the uncle is nearest of kin, in degree. Anti this arises from the legal fiction, which places the descendant, by the jus represenlationis in the same degree of kindred with the parent.

Blackstone, in his Commentaries, (vnl. 2, p 223,) says, “a sixth rule, or canon, is, that the collateral heir of the person last seized, must be his next collateral kinsman, of the whole blood.:’ Apart from the right of representation, this is not true — for, we have seen, that the great-nephew will inherit before the uncle; therefore, the commentator proceeds, in his next sentence, to say, 11 he must be his next, collateral kinsman, either personally or jure represen latio-nis” — thereby plainly showing, that if he comes in by right of representation, ihe law views him as next of kin, no matter how many there may be nearer than him, in fact. Again, the same author says, (page 225,)the issue or descendants o'f John Sides’ brother, are, all of ibero, in the first degree of kindred, with respect to inheritances; those of his uncle, in the second; and those of his great-uncle, in the third, as their respective ancestors, if living, would have been; and are severally called to the succession, in right of such their representative prox-imity.”

In Cooper's Justinian, (page 400, it is said, '“we ,have so far allowed the right- of representation to brothers and sisters’ children, that being, only in the third degree,'they are called to inherit with those who are in the second; and this is evident, because brother’s and sister’s children are preferred to the, uncles and aunts of the deceased, although they are-are all in the same degree of cognation.”

The argument that it is by positive provision of the civil law that brother’s and sister’s children are preferred to uncles and aunts, and'that this excludes the idea of their coming in by the right of representation, has no weight in it, because the object is, not to show that the descendants of a brother, &c , are entitled by implication,* but that when the express provision declares they shall take, they take as their ancestor would have done. Our statute directly recognizes,the right of the descendants of brothers and sisters, to inherit in preference to those of kin, more remote than brothers and sisters, but nearer than those descendants.

It appears then, that by our law, the descendants of brothers and sisters, as to all other kindred,’ occupy precisely the situation which their parents did; and, of course, in this case, the children of the deceased brother of the whole blood, are preferred to the brothers and sisters of the half blood.

The authorities cited by 1 be counsel for the defendant in error, n is believed, do not, conflict, with this opinion. Those were cases in which the courts were determining what, portions the descendants of the same ancestor, in different degrees, were entitled to; for instance, whelher, if ihere were no brother living, the descendants of ihe deceased, brothers took jper capita or per stirpes, or if the iuheri-lance were given by law to 1 lie brothers and sisters, or 1 heir children, and the mother; what part the mother took, when there was no brolher and sister, but nephews and nieces. In their opinions in those oases, ihe courts speak of the different, degrees‘of kindred between the person last, seized, and descendants of the brothers and sislers, as ihey are nearer or more remote, without regard to ihe fictitious rule which, as to olhers, places them all in ihe same degree with the parent represented: but ihe jus representational, did not bear upon those cases, and 1 hey might do so in perfect consistence with a recognition of the rule.

The judgment is reversed, and the cause remanded, that, the county court may proceed to order the distribution in accordance with this opinion.