13 N.W.2d 917 | Wis. | 1944
Proceeding in probate of the estate of Ella Curtiss who died intestate. The county court passed upon the right of half bloods to inherit under the law of this state and held:
"1. That by virtue of section
"2. That it is not the intent nor the effect of the use of the phrase `in the same degree' in said statute to limit the right of the lineal descendants of a half brother to inherit by representation and that the lineal descendants of Stephen Curtiss, a half brother of Ella Curtiss, deceased inherit by virtue of section
The court thereafter rendered final judgment approving the account of the administrator as filed and assigned the real estate and personal property as follows:
"To Emmeline Shaw, `full' sister of deceased, an undivided one fourth thereof;
"To Maude Elting Talford, sole heir at law of the deceased `full' sister Jennie, an undivided one fourth thereof;
"To Harry J. Myers and Donald Curtiss Myers, the sole heirs at law of the deceased `full' sister Mary, to each an undivided one eighth thereof;
"To Luana Curtiss Welch and John Milton Curtiss, the children of the deceased `half' brother Stephen Curtiss I, to each an undivided one twelfth thereof;
"To Mildred Curtiss Haberfeld and to Virginia Curtiss, the children of the half brother Stephen Curtiss I, being the children of Stephen Curtiss II, deceased, each an undivided one twenty-fourth thereof." *313
Thereupon, the full sister, Emmeline Shaw duly assigned to Maude Elting Talford all interest that she might have in the share assigned by the court to the heirs of the half brother, and the said assignee and Harry J. Myers appeal from that portion of the judgment assigning the one fourth of the estate to the heirs at law of the deceased half brother Stephen Curtiss.
The only question raised by this appeal concerns the construction of sec.
"Degrees of kindred, how computed. The degrees of kindred shall be computed according to the rules of the civil law; and kindred of the half blood shall inherit equally with those of the whole blood in the same degree unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors; in which case all those who are not of the blood of such ancestors shall be excluded from such inheritance."
Appellants' position is that the heirs of the deceased half brother, Stephen Curtiss, are not entitled to share in the estate. The contention is that this section was meant to limit the rights of lineal descendants of the half blood to take only when of equal degree with the other lineal descendants. In other words, respondents not being on the same level as their ancestor would have been, appellants contend that they stand in the same position as collateral kindred who take in equal degree under sec.
The report of the committee on revision of the statutes which was appointed at the time of Wisconsin's entrance into the union in 1848 and which is responsible for the text of sec.
A complete and unified plan was contemplated. The interpretation of sec.
"We have usually taken the laws now in force as our text and standard, embodying all their useful provision, together with such as could be found applicable in the laws of other states, adding such new matter as the constitution and our particular necessities seem to require, and which was necessary to give completeness to the work."
And the meaning of the statutes as a whole and their interpretation by the courts sustain the position of the trial court. The section abolishes all distinction between the rights as to inheritance of kindred of the half blood and kindred of the *315
whole blood, except as applied to ancestral property. The rules of descent in respect to lineal and collateral descendants is set out in sec.
Although this court has not been called upon to pass upon this particular question, we find no indication in any of the decisions cited by the appellants that the opinion ever prevailed that sec.
The contention that the words "in the same degree" indicate an intention to deprive lineal descendants of a half brother from taking by representation is not warranted. Singling out one phrase as the significant one without giving the rest full consideration, results in overlooking the broad purpose of the section. It is much more likely that the words "in the same degree" were inserted to make impossible a misconstruction of the statute. And to make certain that under circumstances such as exist in this case, half bloods are to take per stirpes.
The Minnesota supreme court in construing its statute, sec. 8992-29 which is the same as sec.
"Section 8992-30 is not to be construed as changing the order of distribution to designated classes of relatives enumerated in section 8992-29. The plan of distribution provided for in the last-mentioned section is explicit and hence must be regarded as a fixed quantity in the process of construction. In that view, the rule of section 8992-30, that degrees of kindred shall be computed according to the rules of the civil law, applies only where there is occasion to compute degrees of kindred. . . . The provision that kindred of the half blood shall inherit equally with those of the whole blood in the same degree should be construed as meaning that there shall be no discrimination as between half and whole bloods in any case, except that involving the descent of ancestral property."
It is our opinion that that is a proper construction of our statute. The court cannot see any reason for adopting a strained construction of the statute in order to find a limitation of a right where there is every indication that the purpose of the statute is to grant a right to kindred of the half blood.
By the Court. — Judgment affirmed.