Finley v. Abner

| Ct. App. Ind. Terr. | Sep 25, 1902

Townsend, J.

The appellants have filed two assignments of error, as follows: “Assignment of Errors: First. The court committed an error in its finding as follows: 'The court doth further find that the land in controversy, the same being the land of which the said Edith Abner died seised, upon her death descended and vested in the defendant, Joseph Abner, a brother ■of the half blood, the issue of a common father, Dennison W. Abner, deceased, both of her said parents having died prior to ■the date of her death, — her mother without issue other than said intestate, and the father without issue other than said intestate and'1 the defendant herein, Joseph Abner, — and that the said Joseph Abner is the sole and only surviving heir at law of the said EdithAbner, dereased, and as such is the absolute owner of the land in controversy, and was such owner at the commence - ment of this action.’ To which finding of the court the plaintiffs then and there duly excepted, and their exceptions were noted of record. Second. The court erred in rendering judgment for the defendant and against the plaintiffs, to which judgment of the court the plaintiffs at the time duly excepted and their exceptions were noted of record.”

It is conceded that the property in controversy is to be distributed according to the statutes of descent and distribution of the State of Kansas, and that the only statutes of Kansas that are applicable are the following (Comp. Laws Kan. 1885, pp 375-377, c. 33):

“(2239) § 1. After allowing to the widow and children of any deceased intestate of this state, the homestead provided in the next section of this act and the personal property and other allowances provided by the law respecting executors and administrators and the settlement of the estates of deceased persons, the remainder of the real estate and personal effects of the intestate not necessary for the payment of debts, shall be distributed as hereinafter provided.”

“(2256) § 18. Subject to the rights and charges herein-before contemplated the remaining estate of which the decedent died seized shall, in the absence of other arrangements by will, descend in equal shares to his children.”

“ (2258) § 20. If the intestate leave no issue, the whole of the estate shall go to his wife; and if he leave no wife nor issue, the whole of his estate shall go to his parents’.'

“(2259) § 21. If one of his parents be dead, the whole of the estate shall go to the surviving parent; and if both parents be dead, it, shall be disposed of in the same manner as if .they or either of them, had outlived the intestate and died in the possession' and ownership of the portion thus falling to their share or to either of them, and so on through ascending ancestors and their issue.

“(2266) § 28. All the provisions hereinbefore made in relation to the widow of a deceased husband, shall be applicable to the husband of a deceased wife. Each is entitled to the same rights or portion in the estate of the other, and like interest shall in the same manner descend to their respective heirs. The estate of dower and by curtesy are abolished.

“(2267) § 29. 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.”

The question is as to the proper construction of the foregoing statutes, so far as they apply to the facts in this case. The assignments of error can be considered together.’

The court below having found for the defendant, the appellants present the single question involved, in a double aspect, as follows: “Did the defendant, under the facts, inherit the half interest in the property of the deceased which is claimed by the plaintiffs? To put it in another way, Edith Abner died intestate, leaving surviving her no husband nor descendants; and, both her parents being dead at the time of her death, did her half-brother by a common father take all of the real property she died seised of, or only an undivided one-half thereof?” It seems to be conceded that the supreme court of Kansas has not directly passed upon the question presented, and their statute is somewhat different from any other state to which our attention has been called. The appellants cite the Iowa case of Lash vs Lash, 10 N.W. 302" court="Iowa" date_filed="1881-10-24" href="https://app.midpage.ai/document/lash-v-lash-7099669?utm_source=webapp" opinion_id="7099669">10 N. W. 302, as a construction of a similar statute, but the provision of the Iowa Code which that court is considering is as follows: “Where a person dies intestate, without issue, and both parents are dead, the portion which would have fallen to their- share, if they had been living, shall be disposed of in the same manner as if they had outlived the intestate, and died in the possession and ownership of the portion thus falling to their share.” Code, § 2457. The Kansas statute, it will, be observed, differs somewhat from the foregoing. It is as follows: “(2259) § 21. If one of his parents be dead the whole of the estate shall go to the surviving parent; and if hoth parents be dead, it shall be disposed of in the same manner as if they, or either of them, had outlived the intestate and died in the possession and ownership of the portion thus falling to their share or to either of them, and so on through ascending ancestors and their issue.” The Supreme Court of Kansas has decided in a number of cases that heirship depends entirely upon the statute, and where parents inherit from their children, the husband and wife being heirs of each other, they succeed to the property of each other, and, in tracing heirship and determining who are the heirs of their children, it makes no difference whether the relation of husband and wife exists at the time of descent cast. In the case at bar both parents were dead long prior to the death of the intestate, but the husband survived the wife, The statute says if one of the parents be dead the property goes to the surviving parent but if both be dead “it shall be disposed of in the same manner as if they, or either of them, had outlived the intestate and died in the possession and ownership of the portion thus falling to their share or to either of them.” Now, when both are dead, if it is to be disposed of “in the same manner as if they or either of them had outlived the intestate,” why does it not go to the surviving parent, the same as if one had been alive at the death of the intestate? It seems to us that the use of the words, “they or either of them had outlived the intestate ” contemplates a survivor; otherwise the words “or either of them” are meaningless in the statute. The resurrection of the dead parents by this statute in order to trace heirship is a fiction, but when resurrected, do they not inherit and transmit to their heirs the same as if they were living? And the mother of the intestate having died without other heirs than the intestate and husband, when she is resurrected for the purpose of inheriting from the intestate, having no heirs surviving but the husband, does he not take all her property and thus the defendant in this case inherit from his father all of. the property of which the intestate died seised? Black on Interpretation of Statutes (page 83) says: “In giving ■construction to a statute, the courts are bound, if it be possible, to give effect to all its several parts. No sentence, clause, or word should be construed as unmeaning and surplusage if a construction can be legitimately found which will give force to and preserve all the words of the statute.’ The Iowa -statute is so very different that we do not think it is authority in the construction of the statute under consideration.

It is contended by appellee that section 29, which is as follows: “(2267) '§ 29. 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,” — also sustains the findings and judgment of the court below in his decision in this case. What is meant by this provision? “There never is a child, in the sense of offspring, that is of the half blood. If a man were to get children by two women, all the children would have the same amount of his blood, and, so far as he is concerned, are children of the whole blood. The children by the first woman, so far as the woman is concerned, are children of the whole blood; and, as far as the second woman is concerned, they are not of the blood at all; and so of the second woman’s children. With reference to each other, the children of the first woman are children of the whole blood. With reference to the children of the second woman, the children of the first woman are of the half blood.” It occurs to us that the legislature used this expression to indicate people related by the half blood, and that it means what it says, — that “children of the half blood shall inherit equally with children of the whole blood.” — and that as applied to the case at bar, it means that the defendant, being. of the half blood of the intestate, inherits from her the same as he would if he was her brother by the whole blood.

. We are of the opinion that the' judgment of the court below was correct, and it is therefore affirmed.