Godden v. Long, 104 Neb. 13

Godden v. Long

104 Neb. 13 | Neb. | 1919

Morrissey, O. J.

This cause comes here under rule 14 (94 Neb. xiii) of. this court, as a case stated. There is no disputed question of fact, but a construction is asked of the. following provision of section 1266, Rev. St. 1913:

“Section 1266. When any person leaving no husband or wife surviving shall die, seized of any real estate, or any right thereto, or entitled to any interest therein in fee simple, or for the life of another not having lawfully devised the same, it shall descend subject to his debts, in the manner following:

“First — In equal shares to his children, and to the lawful issue of any deceased child by the right of representation; and if there be no child of the deceased child living at his death, the estate shall descend to all his other lineal descendants; and if all said descendants are in the same degree of kindred to the deceased, they shall have the estate equally; otherwise they shall take according to the right of representation.”

The immediate question is whether the term “lawful issue,” as used in the subdivision quoted, means children or lineal descendants. Defendants contend that it means children only, and the great-grandchildren of an intestate, through a predeceased daughter, cannot share in the inheritance of real estate where there are surviving children of the intestate. Plaintiffs contend that “lawful issue,” as used in the statute, refers to descendants generally, and they, as great-grandchildren, are entitled to share in the inheritance of intestate’s real estate according to the rights of representation. The district court entered judgment for plaintiffs.

*15The term “issue,” or “lawful issue,” in its primary legal sense, means descendants or lineal descendants generally, and not merely children. 3 Words and Phrases (2d series) 46; 23 Cyc. 359. It is only when it is used in a special instrument, whose context shows that a narrower construction was intended, that its meaning will he limited. Chwatal v. Schreiner, 148 N. Y. 683, 688. There is no reasonable foundation for assuming that other than the usual legal meaning was intended by the legislature in this statute. In fact, a reading of the subdivisions folloAving the one in question, where- the term “issue” is employed, clearly indicates that the legislature did not regard “issue” as synonymous merely with “children.’’

The judgment of the district court is

Affirmed.

Aldrich, J., not sitting.