McKinney v. Mellon ( 1866 )

By the Court.

The Statute 22d and 23d Charles 2d, called the statute of distribution, together with the civil Law, constitutes the source from which our law was derived, and in common with our own statute, constitutes all the law in this State on the subject. The English statute naming the persons to take as distributees in cases where there is no wife and no children, describes them as “ the next of kin ” to the deceased in equal degrees; and after the passage of that statute, the question very naturally arose as to the meaning of those terms. Consanguinity or kindred being the connection or relationship of persons descended from the same common ancestor, the courts when called upon to interpret them as employed in the statute, and to determine the admission or exclusion of the half blood, admitted them with the whole blood as distributees under it. They were kindred, or in the words of the statute, they were next of kin to the decedent, and were, therefore, within the provisions of the statute, and such has ever been the uniform ruling of the English courts upon the subject. Our statute in reference to the distribution of the residue of the persona] estates of intestates, after naming and specially designating certain classes of kindred from children to parents of the intestate, adopts the language of the English statute, and provides that if there ho none such as arc thus specially designated, then distribution shall be made to and among the next of kin to the intestate in equal degree, and the lawful issue of such kin as shall have died before the intestate. Rev. Code. chap. 89, see. 32, p. 304. Assuming this to be correct, it follows that the half blood are entitled to, and must be admitted to share in the distribution in equal degree with the whole blood in all cases where they are not by express statutory provision excluded by preference conferred by it upon others. This our statute has done only in preferring brothers and sisters of the whole blood to brothers and sisters of the half blood. It is therefore the opinion of the court in this case, that the kindred of the half blood of the decedent, are entitled to share equally in the distribution of the residue and fund in question in the hands of the defendant as his administrator, with the kindred of the whole blood, and judgment will accordingly be entered for the plaintiff for eighty five dollars and forty five cents with interest and costs as aforesaid.