44 Ind. 368 | Ind. | 1873
The record in this cause presents for our decision but a single question, the solution of which depends upon the construction which should be placed upon the first and second sections of our statute of descents. The first and second sections of our statute of descents are as follows :
“ Sec. 2. If any children of such intestate have died intestate, leaving a child or children, such child or children shall inherit the share which would have descended to the father or mother, and grandchildren, and more remote descendants, and all other relatives of the intestate, whether lineal or collateral, shall inherit by the same rule: Provided, that if the intestate shall have left at his death grandchildren only alive, they shall inherit equally.” 1 G. & H. 291.
The material facts of the case are these:
Abner Cox died,leaving a large personal estate undisposed of by will. Seven children were born to him, ail of whom died before him. Each of these children left children surviving them. One grandchild died leaving children surviving him. Only grandchildren and the descendants of grandchildren survived the ancestor.
There were thirty-three lineal heirs of the said Abnér, thirty-one of whom were grandchildren, and two were great-grandchildren. Certain of the children of the said Abner left but one heir surviving them, while others left a large number.
The appellants, who are the sole heirs of certain of the children of the said Abner, filed their petition in the court below, alleging the foregoing facts, and praying that the said estate should be distributed purely per stirpes, that is, that said estate should be divided into seven equal parts in accordance with the number of the children born to the decedent; in other words, that the children, though all dead before their father, should be made the basis of distribution.
The appellees filed their cross petition, alleging substantially the same facts, but averring that each grandchild is .entitled to one thirty-second part of said estate, and that the great-grandchildren are entitled to one thirty-second part
The appellants demurred to the cross petition, upon the ■ground that it did not contain facts sufficient to constitute a cause of action, but the demurrer was overruled, to which the appellants excepted,-and they refusing to plead further, :final judgment was rendered in favor of the appellees, decreeing the distribution of such estate in accordance with the prayer of the cross petition.
From this judgment, the plaintiffs below appealed, and have assigned for error the overruling of the demurrer to the cross ■;petition.
■ The respective positions assumed by the learned counsel engaged in this cause may be briefly stated as follows:
Counsel for appellants insist, that though no children were alive at the death of the ancestor, thus leaving the grandchildren next in degree and entitled, if all of equal degree, .to share equally, yet because there are alive two great-grand'children, children and heirs of a grandchild deceased, the rule of descent or distribution is changed thereby; that ■ they are no longer entitled to take equally in right of their being next in degree or of kin to the ancestor, but they are 'remitted to their rights as representatives of their fathers or 'mothers, children of the decedent, and are entitled to take only the share he would have taken, if living.
Counsel for appellants, however, admit, that if grandchildren alone had survived, they would have taken '.equally, or per capita, as next in degree or nearest in kin, but insist that a grandchild having died, leaving representatives, changes the whole rule of descent thenceforward, they taking per stirpes, each in his representative capacity; :the children, though dead before the ancestor, become the 'basis of distribution, and each heir or class of heirs take the share that their fathers or mothers, if living, would have taken,
The following rules or canons of descent are deducible from the doctrine laid down by the most eminent English, and American text writers.
I. The degrees of consanguinity. In the descending line, children constitute the first degree, grandchildren the second, and so on to the remotest degree. Each degree is-complete and distinct. Each one may become the basis of distribution in certain contingencies.
2. If a person dying seized or as owner of land leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to the children and grandchildren of the ancestor, if any be living, or to the issue of such children or grandchildren as shall be dead, and so to the remotest degree, as tenants in common..
3. Persons of equal degree of consanguinity to the ancestor inherit per capita, or share'and share alike, those of unequal degrees per stirpes, or by the right of representation.
5. The nearest degree remaining in being at the death of the ancestor is always made the basis of distribution. If children are alive, they form the basis, taking per capita if children only are alive, taking per stirpes if children and the descendants of children are alive. If grandchildren only are alive, the children all having died before the ancestor, such grandchildren as next in degree and of kin are entitled in their own right to the inheritance—become the basis of distribution. They no longer inherit jure representations, but in their own right as lineal heirs and next of kin to the ancestor.
6. The death before the ancestor of all the persons composing a degree operates to advance the next degree in order one step nearer to the ancestor, and to substitute them in the place thus vacated. The death before the ancestor of all the children operates to advance the grandchildren to the first degree from the ancestor and to substitute them in their own fight in the places of the children; and the persons thus advanced take equally in their own right, and, upon the death of any of them, his or her children take the share their father would have taken, if alive.
7. Distributees, however far removed in degree from the ancestor, if equal in degree, inherit equally, if unequal in degree, they take per stirpes, those equal in degree and nearest in degree to the ancestor taking equal shares in their own right, while those of unequal degrees and one ste]> further removed from the ancestor take only the shares their parents would have taken, if alive. If children and grandchildren are alive, the children take equal shares, and the
Judge Blackstone says: “ A fourth rule, or canon of descents, is this; that the lineal descendants, in infinitum, of any person deceased, shall represent their ancestor; that is, shall stand in the same place as the person himself would have done, had he been living.
" Thus the child, grandchild, or great-grandchild (either male or female) of the eldest son succeeds before the younger son, and so in infinitum. And these representatives shall take neither more nor less, but just so much as their principals would have done. * * * This taking by representation is called succession in stirpes, according to the roots; since all the branches inherit the same share that their root, whom they represent, would have done. And in this manner also was the Jewish succession directed; but the Roman somewhat differed from it. In the descending line the right of representation continued in infinitum, and the inheritance still descended in stirpes: as if one of three daughters died, leaving ten children, and then the father died ; the two surviving daughters had each one-third of his eifects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still sub: sisting (as if the deceased left one brother, and two nephews the sons of another brother), the succession was still.guided by the roots; but, if both of the brethren were dead, leaving
The same learned author, on page 517, says :
“ Before I quit this subject I must, however, acknowledge ■ that the doctrine and limits of representation laid down in the statute of distributions, seem to have been principally borrowed from the civil law: whereby it will sometimes happen, that personal estates are divided per capita, and sometimes per stirpes ; whereas the common law knows nó other rule of succession but that per stupes only. They are divided per capita, toevery man an equal share, when all the claimants claim in their own rights, as in equal degree of kindred, and not jure representaiionis, in the right of another person. As, if the next of kin be the intestate’s three brothers, A., B., and C.; here his effects are divided into three equal portions, and distributed per capita, one to each: but, ifone of these brothers, A., had been dead, leaving three children, and another, B., leaving two; then the distribution musthavebeen per stirpes,viz.-. One-third to A.’s three children, another third to B.’s two children, and the remaining third to C., the surviving brother: yet, if C. had also been dead, without issue, then A.’s and B.’s five children, being all in equal degree to the intestate, would take in.their own rights per capita, viz.: each of them one-fifth part.”
Chancellor Kent says: “ The first rule of inheritance is,, that if a person owning real estate dies seized, or as owner,,
: “ This rule is in favor of the equal claims of the descend-; ing line, in the same degree, without distinction of sex, and to the exclusion of all other claimants. Thus, if A.- dies,, owning real estate, and leaves, for instance, two sons and a daughter, or instead of children, leaves only two or more grandchildren, or two or more great-grandchildren, these persons being his lineal descendants, and all ofequal degree of consanguinity to the common ancestor, that is, being ail of them» either his children, or grandchildren or great-grandchildren’ they will partake equally of the inheritance as tenants in common.”
The same learned author, on page 390, says:
“ The second rule of the descent is, that if a person dying seized, or as owner of land, leaves lawful issue of different degrees of consanguinity, the inheritance shall descend to, the children and grandchildren of the ancestor, if any be giving, and to the issue of such children or grandchildren as-shall be dead, and so on to the remotest degree, as tenants:in common. But such grandchildren and their descendants: shall inherit only such share as their parents respectively, would have inherited if living.
“The rule is thus declared in theNew York Revised Statutes,' and it probably is to be found in the laws of every state in the. Union. The rule applies to every case where the descendánts of the intestate, entitled to .share in the inheritance, shall be of unequal degrees óf consanguinity to the intestate.-■ Those who are in the nearest degree take the -.shares which», would have descended to them, had the descendants, in the," same degree, who are dead leaving issue been living; and:
In Williams Executors, 1348, the rule is thus lucidly stated: " Secondly, where the intestate’s children are all dead, all of them having left children. If a father have three children, John, Mary, and Henry, and they all die before the father, John leaving, for instance, two children, Mary three, and Henry four, and afterward the father die intestate, in that case all his grandchildren shall have an equal share: for as his children are all dead, their children shall take as next of kin. Such also would be the case with respect to the great-grandchildren of the intestate, if both his children and grandchildren had all died before him. In these instances, the parties are said to take per capita, or in other words, equal shares in their own right.”
Counsel for appellants in their brief concede that the rules above laid down are the general rules of descent in the United States, and that they govern in the distribution of property. They also, in express terms, admit that such general rules were enacted in the Revised Statutes of 1843, and governed the distribution of property in this State up to the enactment of the statute of 1852. But they say that a radical, a revolutionary change came over the legislative mind of 1852; that the policy of the statute of 1843 was neither per capita nor per stirpes, but embraced both; that the policy of that of 1852 is of descent per stirpes in every instance, "save when grandchildren only are left alive,” and that thus a radical and revolutionary innovation has been made in this State upon the general rules or canons of descent, as they existed in the most of the states, and those expressly enacted in the Revised Statutes of 1843.
The question arising in the record and presented for our decision is, has the general rule of descent, as it exists in England and in the most of the states, and as expressly enacted by the statute of 1843, been changed by the statute of 1852?
The revised statute of 1843 is rather remarkable in its
• The statute of 1852, on the other hand, only attempts to lay down rules. It neither construes nor applies them. It does not specifically provide for every class of cases, but having declared certain rules and general principles, leaves their construction and application to the courts.
The general rules of descent being as hereinbefore stated, and such rules having been enacted into a law by the statute of 1843, and such having been the unquestioned law and policy in this State up to the enactment of the statute of 1852, nothing but the abrogation of such statute and the "enactment of another, in clear and undoubted language, would warrant us in giving to the statute of 1852 the construction contended for by the appellants. If the statute of 1852 will admit of a construction consistent with the general rüles of descent and the established policy of the State, that construction should be given to it. So radical a departure cannot be presumed. It must appear in a clear and satisfactory manner. It is said by counsel for appellant to be “ á radical and revolutionary change,” and in such case the legislative intent to make such a change should be made plainly and clearly to appear. Is such an intent apparent from the phraseology of the statute of 1852? It certainly is not declared in express terms. Then does it arise by implication ? General rules, differently worded, but identi
The statute of 1852, like that of 1843,is neither per stirpes nor per capita purely, but embraces both. When all the heirs or distributees are equal in degree, the rule per capita •obtains. Whether they be children, grandchildren, or great-grandchildren, does not change the rule. They take under the rule equally,in their own right,as next of kin.
If of unequal degree, the rule per stirpes obtains. If children and grandchildren, for instance, are alive, the children form the basis of distribution, the children alive take equal shares, and the grandchildren take the shares their father or mother would have taken, if alive.
, The first section provides for a per capita distribution to children, when they are all alive. The first clause of the second section provides, that “ if any children of such intestate shall have died intestate, leaving a child or children, such child or children shall inherit the share which would have descended to the father or the mother.” It is thus provided that when children and grandchildren are the distributees, the children shall take per capita in their own right as nearest of kin, and the grandchildren shall take per stirpes the share which would have descended to their father or mother. In this instance, the children constitute the first basis of distribution. The section then provides, “ and grandchildren and more remote descendants * * * shall inherit by the same rule.” That is, that when grandchildren and great-grandchildren are the distributees, the grandchildren shall, constitute the first basis of distribution and shall take equally in their.own right as nearest of kin, and the great-grandchildren* who are embraced by the phrase “ more remote descend-;.
If this be the true construction qf the body of the section, the question arises, what was the necessity for the proviso, which reads: “Provided, that if the intestate shall have left at his death grandchildren only alive, they shall inherit equally?” We answer that there was no necessity for the proviso, as it only declares in express terms what was the plain and obvious meaning of the original section. Then,
The judgment is affirmed, with costs.