Carlton v. Burleigh

52 Kan. 392 | Kan. | 1893

The opinion of the court was delivered by

Horton, C. J.:

H. O. Burleigh, late of Sedgwick county, deceased, was married three times. By his first wife, he had one child, Minnie Cowley. By his second wife, he had one child, Helen H. Carlton. By his third wife, Mrs. Mollie L., he had five children. On the 31st day of December, 1887, three weeks prior to the death of his third wife, H. O. Bur-leigh died intestate, at his home in Wichita, in this state, leaving an estate. On the 21st day of January, 1888, three weeks after H. O. Burleigh’s death, his widow, Mrs. Mollie L. Bur-leigh, died intestate. This was an action in the court below for partition, and the sole question is, whether the two children of H. O. Burleigh by his former wives inherited any part of the estate of Mrs. Mollie L. Burleigh, the widow. Under the rulings of the trial court, when the husband, H. O. Burleigh, died intestate, one-half of his estate, after paying all his debts, descended to his widow, Mrs. Mollie L. Bur-leigh, and the other half descended to his seven children equally, being all of his children by his three wives.

Section 8 of the act concerning descents and distributions provides:

“One-half in value of all the real estate in which the husband, at any time during the marriage, had a legal or equitable interest, which has not been sold on execution or other judicial sale, and not necessary for the payment of debts, and of which the wife has made do conveyance, shall, under the dirction of the probate court, be set apart by the executor as her property, in fee simple, upon the death of the husband, if she survives him: Provided, That the wife shall not be entitled to any interest, under the provisions of this section, in any land to which the husband has made a conveyance, when the wife, at the time of the conveyance, is not or never has been a resident of this state. Continuous cohabitation as husband and wife is presumptive evidence of marriage, for the purpose of giving the right aforesaid.” (Gen. Stat. of 1889, ¶ 2599.) '

It is clear, therefore, that at H. O. Burleigh’s death, his wife, Mrs. Mollie L. Burleigh, inherited, in fee simple, one-half in value of all the real estate in which her husband died seized, not necessary for the payment of his debts. The remaining half of the estate of which Burleigh died seized descended in equal shares to his children —to all of his seven children. By § 18 of the act of concerning descents and distributions, Mrs. Burleigh’s children, being her own heirs, would inherit her property at her death; but it is claimed that, under § 29 of the same act, the two children of H. O. Burleigh by his former wives also inherited a part of Mrs. Burleigh’s estate at her death. That section reads:

“ Children of the half blood shall inherit equally with children of the whole blood. Children of a deceased parent inherit in equal proportions the portion their father or mother would have inherited if living.”

We do not think these provisions change the rule of descent as declared by the trial court in this ease. This section does not make the children of the former wives the heirs of Mrs. Burleigh, if the other provisions of the statute are to be given operation. Mrs. Burleigh was not related by blood to the children excluded from inheriting from her by the trial court» When a parent dies, the parent’s children of the half blood inherit the parent’s estate equally with the parent’s children of the whole blood. Probably children of the half blood, when the parents are dead, may inherit from children of the whole blood, equally with children of the whole blood. This would give the first clause of § 29 some operation. If, however, we adopt the rule that the property should descend so that H. O. Burleigh, if living, would inherit it, then his first wife, who died years ago, would inherit one-half of the estate, and her child would inherit that, and so with the second wife, and so with the third wife. This would be contrary to the provisions of said §§ 8 and 18 above referred to.

All of the provisions of the Illinois statute concerning descent do not conform fully to our own, although the statute relating to half bloods is somewhat similar, using the word “kindred,” however, in the place of “children.” For these and other reasons, we do not follow the case of Coal Co. v. Pasco, 79 Ill. 164.

The judgment will be affirmed.

All the Justices concurring.