21 N.J. Eq. 138 | New York Court of Chancery | 1870
The money in the hands of the complainant, as guardian, being the surplus of the proceeds of lands of an infant, sold by order of the Orphans Court to pay debts of her father, from whom she inherited them, remains real estate, and at her death must descend as such. This was settled by the Court of Appeals in their affirmance of the decree of this court, in Lerch v. Oberly, 3 C. E. Green 575. It is admitted by all parties that the mother is entitled to the interest of this money for her life. The only question is, whether, by the statute of descents in New Jersey, cousins, the children ■of a deceased uncle or aunt, are entitled to inherit with uncles and aunts who survive the intestate, or whether such uncles and aunts are entitled to inherit exclusive of cousins, as not in equal degree of consanguinity, and not entitled to represent their deceased parent.
The question is one which has never been directly decided by the law courts of this state. There are dicta and supposed impressions of the bar of the state, against the right ■of cousins to inherit with uncles and aunts, and on the other-hand, in the case of Lerch v. Oberly, it was expressly ruled in this court, that a cousin of Emma Oberly, the daughter ■of an aunt who had died before her, inherited equally with her surviving uncles; the decree was framed upon that ruling, and was afterwards affirmed in the Court of Appeals. 'The opinion in this court was not given inadvertently, but was one that had been formed upon a careful consideration
The whole question is, whether the statutes of descents have, directly or by implication, abolished and changed the established common law doctrine of representation among collaterals, and whether, in ascertaining the “degrees of consanguinity” mentioned in those statutes, we must adopt the Civil law method of computation of degrees of kindred adopted by the courts of England and of this country, in calculating who are “ next of kindred” under the statute of distributions.
It is said that Chief Justice Green, in a case at Hunter-don circuit, of which there is no report except a note in Nixon’s Digest, held that cousins could not inherit with uncles and aunts. The opinion of that learned jurist, though at circuit, on a question which he had examined and considered, would have great weight with me, but I have been told by counsel present, that the question was not argued, and that the decision was made by a simple question to counsel, whether it had ever been heard of in this state, that cousins inherited with uncles. I have no doubt that such opinion was .entertained by many of the bar, who, if not called upon to investigate and examine the subject, would naturally conclude from the adoption of the Civil law rule, by the civil as well as the ecclesiastical courts, in ascertaining the next of kin under the statute of distributions, that it would be adopted as the rule under the statute of descents. An opinion thus formed would, no doubt, be acted upon at the circuit. But a mere ruling in one cause at the circuit in this manner, cannot be considered as settling the law.
The common law of England, which is adopted in this state, especially as regards real estate, has certain clear and well settled rules or canons of descent, which, so far as not changed by statute, our courts have always recognized and adhered to. These canons have never been held to be repealed by doubtful words, but only by express words or necessary implication. Among these rules or canons is one, that inheritance shall lineally descend, but shall never ascend. A statute would repeal this rule, and where it
Another common law rule, or canon of descent, the fifth enumerated by Blackstone, is, that on failure of lineal issue the inheritance shall descend to the collateral relations of the blood of the first purchaser, subject to the rules that the lineal descendants shall represent their ancestor ad infinitum, and that the collateral heir shall be the next collateral kinsman. The canons of male preference and primogeniture, which also qualified this rule, have been expressly repealed. Now, by this canon it was never doubted or disputed that the common law recognized representation among collaterals ad infinitum. And when an intestate left only female collateral heirs, as one aunt, three daughters of a deceased aunt, and one daughter, and five granddaughters by the same deceased mother, of a third deceased aunt, that all these would inherit together; each set of children taking, by representation, the share of its deceased parent.
The question here is, has this rule been changed by the legislation in New Jersey? There is no express enactment changing or limiting the rule of representation among col-laterals. In the statute of distributions, it is expressly enacted that no representation shall be admitted among
Nor is there anything in the act of descents, or in the past legislation of the state on that subject, which shows an intention to abolish the common law doctrine of representation among collaterals. On the contrary, every act in the whole legislation of the state, has shown an intention, carefully and minutely declared, to provide for representation among collaterals, as well as lineal descendants, wherever they are mentioned. In case of brothers and sisters of the whole blood or half blood, it provides that in case they, or any of their children, shall have died, their children, respectively, shall take their share; a provision which the courts will continue, by construction, to the most remote issue. For, by the statute, neither father nor mother, nor collateral of equal degree, can take, as long as there is any issue of a brother or sister of either whole or half blood. And the doctrine of primogeniture would not be revived to fill the hiatus.
The fact that none of the acts regulating descents, or to reform the provisions of the common laws, contain any provision like that of the statute of distributions, that no representation should take place after brothers’ and sisters’ children, shows that there was no intention to abolish representation. The provision in the statute of distributions, so familiar to
Representation among all of the blood of the ancestor, has been a favorable doctrine among the legislators and the people of this state. The legislature have shown this, not. only by their positive provisions, but by using, in this section, the word consanguinity instead of kindred, as in the statute of distributions. This word refers to the bond of blood, by which the common law transmits property, common blood coming from the same ancester; a word peculiarly appropriate to the common law mode of reckoning kindred, as distinguished from the canon or Civil law rules. By the doctrine of representation, the common law rule is always to count the degrees from the intestate to the common ancestor. Those who come from the nearest ancestor of the decedent, are united by the nearest common blood or consanguinity, as concerns or relates to him. And that one uncle of the deceased should take the whole inheritance, to the exclusion of the children of two other uncles who had died shortly before him, would strike as grossly unjust every citizen who had been trained to venerate the justice of
The words “ of equal degree ” of consanguinity, cannot be held to exdude cousins from inheriting with uncles, as long as the common law rule of reckoning degrees is adhered to; that includes representation; and by that, cousins are in the same degree with uncles. The common law had this settled rule; and it was the rule adopted as to real estate and adhered to in England and in this country, long after the statute of distributions and the decisions adopting the Civil law computation under it. With this rule established as the common law rule for reckoning degrees in the subject of legislation, the legislature pass an act to regulate the descent of real estate, and mention, without further definition, degrees of consanguinity. It is impossible, by any rule of interpretation, to infer that any other meaning was intended to be given to these words, than the technical meaning given to them in the system of law, as to the particular subject in which they are used, and to which they relate. The word heirs, if used in a New Jersey statute, would mean heirs by its present laws, not heirs by the law of England or the Civil law, or any system of foreign law.
And the doctrine of the Supreme Court in the case of Taylor v. Bray, as to ascent, applied to this case, would clearly leave the common law rule to govern it. That case was much stronger than this; the grandmother was clearly of consanguinity to the decedent, and nearer than his collateral relations. She was the person designated by the words of the statute, and by them was entitled, by whatever rule consanguinity was reckoned, and without regard to the doctrine of representation; and yet it was held that although these words, in their literal meaning, would contravene the common law rule against ascent, yet, as there was no trace in the legislation of the state of any purpose to abolish the ancient law, these words should not have that effect.
The first act in the legislation of the state on'this subject. after the Declaration of Independence, was that of May 24th, 1780. Pamph. Laws 81; Pat. Laws 43. This abolished entirely the right of primogeniture, and partially the preference of male stocks, by giving to male descendants, both lineal and collateral, as far as brothers and sisters and their issues, two shares to one for a female descendant. It also provided for inheritance by brothers and sisters of the half blood, without excepting those not of the blood of the ancestor. This act provides for lineal descendants in the first section, for brothers .and sisters in the second section, and for brothers and sisters of the half blood in the third section. It carefully provides for representation among lineal descendants and issue of brothers and sisters of the whole blood in the first two sections; but does not provide this as to the half blood in the third section, which was evidently drawn by a less skillful hand; and by a blunder, not strange, perhaps, if we knew its draftsman, but which, it seems strange, could have been overlooked by those who had charge of this change of legislation, provides if a person should die seized intestate, and without leaving a brother or sister of the whole blood, or their issue, leaving a brother or sister of the half blood, that such half blood should inherit; and as it does not mention dying without issue, the half blood would, by the literal interpretation, take in preference to children, if there was no brother of the whole blood. This act does not provide for any collaterals beyond brothers of the half blood, and the issue of brothers of the whole blood, but left the common law rules, as to primogeniture and preference of male stocks, in full force as to uncles, cousins,
The next step taken was by the act of February 5th, 1816, (Pamph. Laws 7,) which was intended to abolish the rules of primogeniture and male preference entirely, and to give male and female heirs equal shares, whatever the common degree of lineal or collateral relationship might be. It provided this by general words. It enacted that the real estate of any person who should “ die intestate leaving two or more heirs lawfully entitled to the same, should descend to, and be inherited by, his or her said heirs, whether male or female, lineal or collateral, in equal shares or portions.” This act left the law as it was, so far as it declared who wore heirs, but enacted that all who were heirs by the law as it then was, should inherit in eqxial shares, whether male or female.
Next follows the act of February 15th, 1816, (Pamph. Laws 26,) amending the third section of the act of 1780, relating to half blood, by inserting the words “ lawful issue or” between the words “without” and “ any brother,” &c., and by adding a clause excluding those not of the blood of the ancestor, from whom the property came to the intestate; but it did not provide for representation. Before this, the Supreme Court, in Den v. Urison, 1 Penn. 212, and Den v. De Hart, 2 Penn. 481, had held that the provision for brothers of the half blood, must be taken as subject to the general rule of the common law in other collateral descents whore the intestate had inherited the land from an ancestor, that he must be of the blood of the ancestor. But the Court of Appeals, in Arnold v. Den d Phœnix, 2 South. 865, overruled these cases, evidently to arrive at an equitable result, according to their spirit, but against the letter, and the decision so made was followed in Den v. McKnighT, 6 Halst. 385.
Next follows the act of January 29th, 1817, (Pamph. Laws 8, Rev. Laws 608,) of which the seven enacting sections are the same in effect, and almost in words, as the first seven
In the sixth section of the act of 1817, the descent to collaterals beyond the issue of brothers and sisters, is provided for. It was intended to supply the provision of the act of February 5th, 1816, thereby repealed, and to correct the evident defects in the language of that act. The object in both cases, was simply to abolish primogeniture and male preference in all cases, as had been done before, among lineal descendants, and brothers and sisters, and their issue,
The general intent of all the legislation was to preserve the doctrine of representation among collaterals as well as lineals, and in no case is there any positive attempt to change or abrogate it.
The doctrine of the common law as to representation among collaterals must ther^ore be held, like the rule as to ascent, not to be affected by the provisions of this sixth section.
The consequences supposed to flow by the words of this act, it is said, must prevent permitting such representation. It is assumed that if cousins are held to be in the same degree as uncles, six children of a deceased uncle would inherit with a surviving uncle per capita, each one-seventh. But this difficulty should not change the construction of the language, settled by other oases in precisely the same situation, and according to the established rules of construction. It should be avoided by giving to the provision itself that meaning which was evidently intended. The words “ shall descend and go to the said persons of equal degree of consanguinity, as tenants in common in equal parts,” should be
All the acts regarding descent, have been and must be by common consent, construed according to their evident intention, and not according to the literal import of the words. The act of 1817, as now in force, according to its literal interpretation, does not abolish primogeniture or male preference, where an only child has died before his father, leaving children. The oldest son, on the death of the grandfather intestate, would take the whole. The act only provides for
Again: the third section of tiio act of 1780, which directs in terms, that brothers and sisters of the half blood shall inherit belitre children of lineal descendants of the person dying seized, never was or can be construed according to this literal meaning, but according to the intent only, to provide for cases where there were no lineal descendants, or brothers of the whole blood. And this interpretation could be only on the ground that the rule of preferring lineal descendants is so engrafted on our laws, and deeply rooted in the opinion of our people, that the intention to change it will not bo inferred until legislation has so expressly declared. Representation among collaterals is just as much cherished in our legislation, and the right of cousins to inherit with uncles is just as much impressed upon the minds of the community as a matter of equity and justice, as the preference of descendants to the half blood. In most cases tiio injustice would not seem so glaring, but if an orphan minor should die at twenty in the family of an aunt, where she had boon brought up, and the children of that aunt, who had been as brothers and sisters, should be excluded from all share of her patrimony, because their mother had
The act of February 5th, 1816, by its literal construction, would give the estate to all lawful heirs in equal shares. At that time, the children of a deceased son, and also of such deceased son’s deceased grandchild were heirs, yet these would never have been held to take equally with a son per capita, but only per stirpes; the equality intended, if not expressed.
Such being the rule by which the term “ in equal parts,” in this section, must be construed, the difficulty assumed to arise from the consequences vanishes. And a construction by which the section is held to direct the descent to those in equal degree of consanguinity, according to the rules of the common law, including the doctrine of representation in equal parts, equal per stirpes, in case of representation, would be in harmony with the rules of construction in other cases, and give effect to the undisputed intent of the legislature.
If the Civil law rule for reckoning collateral degrees has been adopted as the law of this state, for computing degrees of consanguinity under the sixth section of the act of descents, that would put the question at rest, and render useless the reasoning to show that it is not the proper rule.
It has not been adopted by legislation, nor by any decision of our courts. It is said that the general opinion of the profession is in favor of it. The fact may be so; but many of the profession with whom for years I have conferred on this subject, have viewed it as unsettled, and some of no mean eminence have contended that it was not the correct rule. The report of the master in this case, a lawyer of eminence, of long experience and extended practice, to whom the office of Chief Justice was tendered near twenty years ago, shows that the profession are not unanimous in their opinion. Opinions formed, or rather acqui
The only authority I find for this position is a quasi dictum of Chancellor Kent, who says, 4 Com. 412, that in computing the degrees of consanguinity, the Civil law is generally followed in this country. Ho merely states the fact, but refers to no cases or authorities in which it has been so decided or held; I am unable to find a single case in which it has been so held, where the statute of the state has not adopted that rule, or one like it. The case nearest to it is one in the Supreme Court of Connecticut, Hillhouse v. Chester, 3 Day 166. The statute of Connecticut under which that case arose, gave “ the residue both of the real and personal estate, equally, to every the next of kin of the intestate in equal degree, and those who legally represent them.” Previous statutes and recitals in their preambles, showed that in Connecticut, real estate had generally been administered and divided among the heirs, in common with the chattels or movable estate, and that the lands of a woman, upon marriage, passed to her husband, and were disposed of by him, like her personal estate. And in the legislation of tho state, land had been treated as of small value as compared with personal estate. On these considerations, and because the words “ next of kin ” were used, as applied to personal property, together with land, and were taken from the English statute of distributions, under which they had received a settled meaning, the court held the same meaning
The Civil law rule of reckoning degrees of kindred, has-been adopted both by the English courts and in this state, in giving effect to the statute of distributions. This was so-held by Sir Jos. Jekyll, Master of the Rolls in 1722, in Mentley v. Petty, Finch’s Prec. 593; by Lord Hardwicke, in 1749, in Thomas v. Ketteriche, 1 Ves. 333; and by Sir John Strange, in 1750, in Lloyd v. Tench, 2 Ves. 213; and has been ever since acquiesced in. In the construction of that statute, the courts have always regarded the fact that it was for the purpose of regulating a matter which was the proper subject of the jurisdiction of the ecclesiastical courts, which proceeded in matters of property according to the rules of the .Civil law. That statute as stated by Holt, C. J., in Pett v. Pett, 1 Lord Raym. 571, and 1 P. W. 25, was drawn up by Sir Walter Walker, an eminent civilian. He had applied without success to the common law courts, to compel the ecclesiastical courts to make distribution. These last mentioned courts originally held that the ordinary being entitled to the administration, could retain the surplus. But after the Reformation, it was the practice of the ordinary in granting administration, to require of the administrator, either a bond that he would distribute the surplus in the manner the ordinary directed, or that he should pay in advance certain portions to such persons. But after the statute of Edward III, directed that the ordinary should grant administration to the best friend of the intestate, he could exact no such conditions, and it was held that neither the-ecclesiastical or civil courts could compel distribution. This was the occasion of the statute. Hence, in construing it, the courts regarded the rules of the Oivil law, and of the-ecclesiastical courts, as the proper rule for the construction
Nor is this matter affected by the consideration, that the act of descents having used the same term which had been used in the statute of distributions, the meaning of which had been settled at law, it should have the same meaning here. It is not the same term ; “ next of kindred,” and of' “ equal degree of consanguinity,” are radically different. The latter peculiarly applies to the descent of real estate; by its very structure, referring to the common ancestor, through whose blood the estate is supposed to come, and is most appropriately used to express the common law rule, which calculated only the degrees of the intestate from the common ancestor, and held all from his blood in the same degree. Besides, the same word is often used in different meanings in different statutes; when as here, it is applied to-a different subject matter. And here, there is not the necessity, as in the statute of Connecticut, to apply one or the other of these meanings to both subject matters, because they were connected in the same sentence.
This is the situation of the case: Law judges of the highest authority, have intimated opinions different from the view taken by me of the question in the cause; and