Talbott's Heirs v. Talbott's Heirs , 56 Ky. 1 ( 1856 )

Judge Stites

delivered the opinion of the court:

John Talbott, an infant, died without issue, seized and possessed of a tract of one hundred and seventy acres of land, derived by deyise from his father, Samuel Talbott, also deceased. Samuel, the father, had been twice married, and at his death left children by both wives. John Talbott, the deceased infant, and the appellants, were children of one wife, and the appellees children of the other. In a proceeding, by appeal from the county to the circuit court, had for a partition of the real estate of the deceased infant, it was held by the circuit judge that the appellees, under the statute, took equally with the appellants, and a partition was ordered in conformity with that opinion. From that order this appeal is taken, and the correctness of that decision is the main question for our consideration.

1. Where an infant dies possessed of real estate devised to him by the father,having brothers and sisters of the whole, and of the half blood, those of the half blood take only half shares with those of the whole blood, according to the 9th, sec. Revised Stat.,p. 280, and sec. 3d of the same statute.

The 9th section of the chapter of the law of descents, (Revised Statutes, 280,) contains the rule that must control the question. It provides : “If an infant dies without issue, having title to real estate derived by gift, devise, or descent, from one of his parents, the whole shall descend to that parent and his or her kindred, as hereinbefore directed, if there is any; and if none, then in like manner to the other parent and Ms or her kindred ; but the kindred of the one shall not be so excluded by the kindred of the other parent, if the latter is more remote than the grand-father, grand-mother, uncles and aunts of the intestate, and their descendants.”

This section, and the 8th, immediately preceding, in the cases named in each, vary the general course of descents prescribed in the previous sections of the same chapter. The 8th, applicable to adults dying without issue and intestate, having real estate of inheritance, the gift of either parent, makes the whole of such estate descend to such parent if living. Beyond this restriction and contingency, the estate, in such cases, goes according to the previous general rules. The 9th applies alone to infants dying without issue, possessed of inheritable real estate acquired from one of the parents. It imposes an additional restriction or limitation upon such estate, confining the descent, not only to the parent from whom it came, but also to the kindred of such parent, if any, excluding the kindred of the other parent, provided the kindred of the parent from whom the estate descended, or was derived, should not be more remote than the degrees named in the concluding clause of the section.

Here the father, from whom the estate was derived, was not living at the death of the infant, and the question arises, whether the brothers and sisters of the infant, of the whole and the half blood, of the same father, shall take as lineal descendants of the father, as though directly from him, or as collaterals of the infant, deriving their right through a common ancestor.

2. The brothers and sisters of an infant take from the infant as collaterals, where they inherit real estate from the infant. (Sec. 3 of statute of Descents.)

Upon the one side, it is insisted that the object of the section in question was to place the estate, for purposes of descent, in the position it would have occupied had the death of the infant occurred prior to that of the father, and to make it descend lineally. On the other, it is contended that the section was not designed to alter the character of the descendants, making collaterals lineals, but, that the language, “to that parent and his or her kindred,” merely imports a restriction of the descent to the kindred of that parent to the exclusion of the kindred of the other, as qualified in the section.

We are of opinion that the latter view, is correct, and that the purpose of the legislature, as expressed by the 9th section, was not in anywise to alter or affect the well settled rules as to collateral and lineal descendants, but simply to limit the descent of the real estate of an infant dying without issue, to that side of the house from which it came. Not only to the father, if living, as provided in the 8th section, but likewise to the kindred of the father.

In the absence of the father, who first takes, his children take, not from the father, but directly from the infant. They do not take as lineals, but through a common ancestor, as collaterals on the father’s side — and some being of the whole, and some of the half blood, and the estate then descending as the section prescribes, “in the manner therein before directed, it falls under the operation of the 3d section, which provides “that collaterals of the half blood shall inherit only half as much as those of the whole blood, or as ascending kindred when they take with either.”

It results from the foregoing conclusion, that the appellees, or those who were half-brothers and sisters on the father’s side, of the deceased infant, being collaterals of the half blood, are only entitled to one-half as much as those of the whole blood, and the judgment complained of being in conflict therewith, is deemed erroneous.

Wherefore, the judgment of the circuit court is reversed and cause remanded, with directions to aflirm the judgment rendered by the county court upon the original petition.