Porter v. Askew ( 1840 )

Spence, J.,

delivered the opinion of the court.

In this cause a decree was passed by the county court of Baltimore county, for the sale of the real estate of a certain Elizabeth Long, who died intestate, seized of real estate, for the purpose of making distribution of the same, among her heirs at law. After the ratification of the sale, made by the trustee, Mary Askew, the appellee filed her petition to the court, alleging, that she was in law entitled to the whole fund arising from said sale. The cause was referred to the auditor, who stated two accounts; in one of which he awarded the whole fund, after deducting costs and charges, to Mary Askew, the appellee. In the second account, he allowed to Mary Askew, one-fifth part, and distributed the other four-fifths, among the children and heirs of Jesse Porter, Robert Porter, Rebecca Stone and Wesley Porter. Baltimore county eourl confirmed the auditor’s statement and account No. 1, which awarded the whole fund to Mary Askew, and ordered the proceeds to be applied accordingly, and overruled account No. 2. From this order of the court, confirming the auditor’s account, No. 1, and overruling account No. 2, this appeal is taken.

The first question to be decided in this cause is, who of these claimants are in law entitled to this fund, thus made by the sale of the real estate of Elizabeth Long. ? This question arises under, and must be determined by, the provisions of the act of Assembly, passed December 1820, ch. 191, entitled “an act to amend and reduce into one system the laws to direct descents.”

The bill states that Elizabeth Long at her death, left as her heirs at law, Mary Askew, an aunt, and Robert Porter and others, children of uncles, and an aunt of Elizabeth Long, her heirs at law on the part of the mother of the said Elizabeth, and that the estate descended to said Elizabeth, on the part of her mother.

The question then is, does the aunt of the intestate, under the act of 1820, ch. 191, take the whole real estate, to the exclusion of the children of uncles and aunts of the intestate,, or do they come in by representation, and participate with the aunt in the fund?

The fourth section of the act of 1820, ch. 191, contains this restriction, “provided, that there be no representation admitted among collaterals, after brothers and sisters children.”

It must have been the intention of the Legislature, by the language employed in this section, to limit representation among collaterals, to the children of brothers and sisters of the intestate. It seems tq us that this interpretation is not only the rational and sound one, but that to give it any other, would almost entirely defeat its end, namely, to limit and restrict. We are the more persuaded of the, correctness of this construction, because other tribunals have drawn the same conclusion, from language, if not identically the same, sq nearly so, that we are unable to detect any substantial discrepancy.

The Stat. 22, Car. 2, ch. 10, commonly called the statute of distribution, contains this language, “provided there shall be no representation amongst collaterals after brothers and sisters children.”

The courts in England have again, and again decided, that the meaning of this language is, the children of the brothers and sisters of the intestate. And we are at a loss to conceive of a more perfect analogy between any two cases, than this case, and the case of Bowers vs. Littlewood, 1 P. Wms. 593, presents.

The appellants’ solicitor insisted in the argument of this case,, that if Mary Jlskew was the sole heir, and only person entitled, to the estate of Elizabeth Long, the intestate, the court had no jurisdiction to pass the original decree to sell the real estate, it, not being a. case in which th.e court had, such jurisdiction under the provisions of the act of 1820, ch. 191, or any of its supplements; and that therefore, this decree was a nullity; of the correctness of this conclusion, notwithstanding the ingenious argument of the appellants’ solicitor, we are not persuaded. This question is not now before this court. No appeal having been taken from the original decree, the legal correctness of that decree is not now before us for revision.

decree affirmed with costs.