32 Haw. 140 | Haw. | 1931
This is a suit in equity brought by the Bishop Trust Company, Limited, as administrator of the estate of Harold Gordon Spencer, deceased, for the determination and declaration of the heirs at law of said decedent. After summons, order of substituted service upon and notice to the interested parties, after answer filed by the respondents Ada Spencer Meyers, Cora Belle Champney, Alfred C. Phelps, Charles B. Phelps and Carrie M. Mitchell, and after a hearing, the trial judge filed a written decision wherein he found, among other things, that "the evidence herein shows conclusively that the estate of this decedent came to the decedent, with a negligible exception, from his mother" and concluded that under the provisions of section 3305, R.L. 1925, the persons entitled to take the estate of decedent (with an exception not herein involved) are the respondents Alfred C. Phelps and Charles B. Phelps, surviving first cousins of decedent's mother. A decree was entered in conformity with the decision above referred to, from which decree two of the respondents, namely, Ada Spencer Meyers and Cora Belle Champney, have appealed to this court.
Facts found by the trial judge, set forth in his decision and/or the decree and not in dispute, are in part and in effect as follows: on May 31, 1927, Harold Gordon Spencer, whose last domicile was in Honolulu, died intestate in the Territory of Hawaii, leaving therein property, a schedule of which appears in the decree, which *142 schedule may be briefly summarized as follows: real property, lot 4, block 18, Kaimuki tract; personal property, household furniture and fixtures, stocks, bonds, notes and cash on hand with the Bishop Trust Company. The stocks consist of two items, namely: 30 shares of the capital stock of Ewa Plantation Company and 575 shares of the capital stock of the Oahu Railway Land Company, both blocks having come to the decedent by bequest under the last will and testament of his mother, Isabel Spencer. The Kaimuki property, bonds, notes and cash on hand enumerated in said decree were obtained by decedent by the investment and reinvestment of other and additional personal property bequeathed to him by his mother and the rents, issues and profits of the Kaimuki property and of the capital stock of the railway and plantation companies above referred to, and of said investments and reinvestments. Decedent died unmarried, leaving no issue, nor father, mother, brother, or sister, nor any descendant of a deceased brother or sister. The four respondents, Ada Spencer Meyers, Cora Belle Champney, Alfred C. Phelps and Charles B. Phelps, are decedent's surviving next of kin and are all related to him in the same degree of consanguinity, the two former through descent from decedent's paternal great-grandparents and the two latter through descent from the decedent's maternal great-grandparents. Decedent's father was James Gordon Spencer. Respondents Ada Spencer Meyers and Cora Belle Champney were James Gordon Spencer's first cousins. Respondents Alfred C. Phelps and Charles B. Phelps were the first cousins of decedent's mother, Isabel Spencer. Isabel Spencer had two brothers, Chester Thomas and Edward Thomas. It is stipulated by appellants and appellees "that Chester Thomas and Edward Thomas predeceased their sister Isabel Thomas Spencer and left surviving them no issue, nor father, nor mother, nor *143 widow, nor brothers, nor sisters with the exception of Isabel Thomas Spencer and no children of a deceased brother or sister."
The questions presented by the appeal are questions of law and not of fact. The contest arises under section 3305, R.L. 1925, which, after setting forth the rules of descent to different relatives in different named events, provides, "if the intestate shall leave none of the said relatives surviving, nor widow, nor husband, the estate shall descend in equal shares to the next of kin in equal degree, but no person shall be entitled, by right of representation, to the shares of such next of kin who shall have died; provided, however, that if the estate come through either parent of the deceased intestate, the brothers and sisters of that parent and their respective heirs shall be preferred to those of the other parent." Appellants' brief sets forth six "assignments of error" which are grouped for purposes of argument. For the purpose of this opinion the questions argued may for convenience be briefly summarized as follows: First, is property which has been acquired by a person in exchange or through sale of property theretofore received by him as a bequest under the will of a deceased parent, an estate coming to said person through said parent within the purview of section 3305, R.L. 1925? Second, is property purchased with the rents, issues and profits of such bequest an estate coming to the beneficiary through his parent within the meaning of said statute? Third, in the circumstances set forth in this opinion, if the property scheduled in the decree or any part of it came to Harold Gordon Spencer through his mother, are the appellees alone or are the appellants and the appellees jointly the heirs of the deceased brothers of Isabel Spencer, to whom preference is given as to said property by the paragraph above quoted from section 3305, R.L. 1925? *144
1 and 2. Questions 1 and 2 may be considered together. The question set forth in paragraph 1 is usually treated under the subhead "ancestral estates" and it is under this analogy that the parties have chosen to argue it. At common law the term appears to have been confined to real property. "The policy of the common law was to keep the real property in the line of the ancestor by whom it was brought into the family, and after failure of lineal descendants of the last owner the land passes to his collateral relations, provided they are of the blood of the first purchaser by whom it came to the intestate." 9 R.C.L. 36. "Generally the statutes relating to the descent of ancestral estates do not cover personal property." L.R.A. 1916-C, p. 935. However, our statutes of descent make no distinction between personalty and realty. Section 3302, R.L. 1925, provides for the descent to the intestate's heirs of his property "both real and personal, of every kind and description, * * * as in this chapter prescribed." Thereafter the property descending is not referred to as either realty or personalty, but is referred to either as property or as estate.
"In this Kingdom real as well as personal estate of an intestate descends together by the same statute to a person's heirs, there being no distinction between the descent of realty and personalty. We must bear this in mind, for many of the cases cited are from states where the `heirs' take real estate but the personal estate is distributed to the `next of kin,' according to the statute of distribution." Thurston v. Allen,
Of the states wherein, as in this Territory, both realty and personalty follow the same rule of descent, Indiana *146
is frequently referred to in the texts. Quoting from 18 C.J. 819: "While the personal property of a decedent is generally distributed without reference to the source of title of the intestate, and statutes of descent which recognize the source from which the property came are generally construed not to apply to personal property, the Indiana statutes providing that an inheritance which came to the intestate by gift, devise, or descent shall descend in a certain way are applicable to personal property, provided it remains in specie and passes in the same form in which it was inherited, that is, while a change in the form of the property by the administrator does not deprive the property of its ancestral quality, a conversion, reinvestment, or other change of the original form and quality of the property during the lifetime of the intestate deprives it of its ancestral quality so that it comes under other statutory provisions." One of the cases cited in support of the foregoing text is that ofRountree v. Pursell,
What has been said in the foregoing discussion of question number 1 with reference to realty and personalty not part of the mother's estate and acquired by the intestate through sale of property bequeathed him and by investment of the proceeds, applies with still greater force to property bought in part with rents, issues and profits. Even if the rents, issues and profits could be construed to be part of the estate coming to the intestate through his parent within the meaning of section 3305 (which we do not decide), they have lost their identity just as effectively as has the corpus from which they were realized and they cannot be followed to the new acquisitions.
3. What has been said above in the discussion of questions 1 and 2 applies to all of the property scheduled in the decree, with the exception of the 30 shares of Ewa Plantation Company capital stock, evidenced by certificate No. 15339, and 575 shares of Oahu Railway Land Company's capital stock, evidenced by certificate No. 309. To the latter two items it does not apply. The property which they include, as found by the trial judge, is in the identical form in which it was received by Harold Gordon Spencer by bequest from his mother. This property, therefore, descends under the above quoted provision of section 3305 and, so far as it is concerned, "the brothers and sisters of that parent and their respective heirs shall be preferred to those of the other parent." Appellants urge that the statute prefers said parent's brothers and sisters and their descendants only, and does not contemplate devolution in an ascending line. Under the Laws of 1872 apparently the preference extended no farther than the brothers and sisters. The proviso then read: "Provided always that if the estate shall come through either parent, the brothers and sisters of that parent shall be preferred to the others." Under this statute it was held in 1874 in Estate of Kualii,
In Motors Co. v. Nalaielua,
We therefore conclude that under the statute of descent Alfred C. Phelps and Charles B. Phelps are entitled in equal shares to the 30 shares of capital stock of the Ewa Plantation Company and to the 575 shares of the capital stock of the Oahu Railway Land Company, received by the intestate under bequest from his mother, and scheduled in the decree of the trial judge, and that the heirs at law of Harold Gordon Spencer as to the residue of his estate set forth in said schedule are Ada Spencer Meyers, Cora Belle Champney, Alfred C. Phelps and Charles B. Phelps, who are entitled to receive the same in equal shares.
The decree appealed from is reversed. A decree in conformity with the views above expressed will be signed upon presentation.