Clark v. Wife

| Superior Court of New Hampshire | Dec 15, 1844

Gilchrist, J.

Upon the decease of Theodore Furber In 1809 intestate, the real estate in controversy descended, by force of the laws which then existed, to his three children. Theodore, M’Lauren, and the defendant, Lydia.

On the 12th of May 1813 the first named of these children, Theodore, died unmarried and under the age of twenty-one years. And the question which has been chiefly discussed, relates to the effect of this event upon the one-third part which descended to him from his father. Whether it descended exclusively to M’Lauren and Lydia, children of his father, or was shared with them by Dorothy Folsom a sister of the half blood.

The statute of February 3d, 1789, regulating the descent of intestate estates, after providing that they shall descend in equal shares to the children of the intestate and such as. represent them, makes this further provision with respect to the share of any of such children as afterward die unmarried and under the age of twenty-one years, that it shall descend among the surviving brothers and sisters and such as represent them.

It is contended by the petitioners that by the term “surviving brothers and sisters,” are embraced those of the half blood as well as others, in conformity with a construction given both here and in England to the statutes of distributions, as applied not only to cases of intestacy in general, but also to those in which the children of intestates die unmarried and of age, in the life time of the mother. Jessopp v. Watson, 1 Mylne & Keene 665.

By the statute of distributions (22 and 23 Car. 2), and until the statutes of 1 Jae. 2 irrovided that the brothers and sisters of this last named class of persons should be admitted to participate with the mother in the inheritance, the father, and in case of his death the mother as next of kin, succeeded to all of it; and the point decided in the case of Jessopp v. Watson was, that the statute of Jac. 2, in admitting the brothers and sisters of such adults to inherit in the life time of the mother, admitted them upon the same terms as after her death; that is without discrimination between the whole and the half blood.

But the provision of the statute which related to the case of one of the children of the intestate dying iu infancy, in wholly excluding the mother from the inheritance, raised a very remarkable distinction between it and the case of an adult, in which she took the whole as next of kin. And we think it is very difficult to account for such a distinction, unless we suppose the intention of the statute to have been to confine the inheritance of minors to the blood of the ancestor from whom it was derived.

Such has been the construction of the statute in Massachusetts, where it has been held that the provision made for the ease of one of the children' of the intestate dying in infancy, did not apply to a case of the death of an only child. Sheffield v. Lovering, 12 Mass. 490. The same construction appears to have prevailed in this State. McAffee v. Gilmore, 4 N. H. 391. It has been justly said in argument that the point did not arise in the case of McAffee v. Gilmore; but Sheffield v. hovering is directly to the point that by the words “ surviving brothers and sisters,” are not intended those of the half blood, but only those who are of the line of the ancestor.

"We are therefore of the opinion that by the term “ surviving brothers and sisters,” the statute was not intended to embrace a different class of persons from those indicated in the sanae clause by the words “children of the intestate.” Laws N. H. (Ed. 1815) 207, and that the anomaly of excluding from the inheritance the mother who is the next of kin, and admitting those who can have no claim but through her blood, was not contemplated by the statute, and is not warranted by any sound rules applicable to the construction of it.

The conclusion therefore is, that upon the death of Theodore Eurber the younger, unmarried and without attaining the age of twenty-one years, his share of the estate in question, derived by descent or intestacy from his father, descended among his surviving brothers and sisters who were the children of the intestate, and to no others.

Upon the happening of that event then, the estate became vested in equal moieties in M’Lauren and the defendant Lydia.

Upon the death of M’Lauren in 1818, of age and unmarried, his moiety would upon the authority of Jessopp v. Watson descend to the mother, to Lydia, and to the sister of the half blood, Dorothy Folsom.

The two parties last named then each acquired an interest in the inheritance to the extent of one third of one half, equal to one sixth.

TJpon the death of the mother, her sixth descended in equal moieties to the defendant Lydia, and to Dorothy Folsom, who thereupon became owner’ of three twelfths or one fourth part, according to the theory of the defendants.

The petitioners, who with the minor Elizabeth Drew, represent the interest of Dorothy Folsom, are consequently entitled to take upon the partition, each one seventh of one fourth part of the estate in controversy.

Decree accordingly.