21 Vt. 450 | Vt. | 1849
The opinion of the court was delivered by This is an appeal from a decree of distribution, ordered to be made by the probate court, of a portion of the estate of the intestate to certain persons, as the legal heirs to said estate. Ephraim Hatch died intestate, leaving no issue, widow, father, mother, brother, or sister. His nearest surviving relatives were children of his deceased brothers and sisters, some of the whole and some of half blood, and grand children of some of his deceased brothers and sisters, the parents of said grand children having also deceased before the intestate. The probate court decreed the estate to the children of the intestate's brothers and sisters, both of the whole and of the half blood, equally, and excluded the grand children. The legality of this decree now comes before us for decision.
The appellant contends, that this decree was erroneous in the following particulars; 1. He contends, that the children of the brothers and sisters of the half blood should have been excluded in the distribution. 2. That the estate should have been distributed among the children per stirpes, as their parents would have taken, if living, and not in equal shares, or per capita. 3. That the grand children of any deceased brother or sister should have taken the share, which their grand parent would have taken if living. *454
These questions must all depend, for decision, upon what shall be deemed the true construction of our statute of distributions. By our statutes no distinction whatever is made, in the descent or distribution of the property of deceased persons, in consequence of the manner in which the property was obtained, whether by purchase, or inheritance; and all those differences, which obtain in England, and in some of the states, in the descent and distribution of estates for those reasons, are here entirely abrogated, and all property stands alike, regardless of the source from which it came.
As to the first question made, of the right of the half blood, we think nothing more need be said, than to refer to the statute on that subject, which seems to be entirely conclusive. That enacts, in express terms, that "the kindred of the half blood shall inherit equally with those of the whole blood, in the same degree;" and we see no error in the decree of the probate court upon that ground.
The second and third objections seem to rest upon substantially the same ground, and must both stand or fall together; — that question is, whether the case at bar comes within the fourth or fifth rule of our statute, providing the manner of distribution and descent of property in this state.
The appellant contends, that the case comes within and must be governed by the fourth rule, and if so, then clearly the estate must be distributed per stirpes; and probably the grand children must also be permitted to share as representatives of deceased brothers and sisters. It is urged, that the word relatives, in the fifth section, relates as well to the" representatives of any deceased brother or sister," as to those relatives, who are specially named in the fourth section, and that, until all such representatives are exhausted, the case must be considered as within the fourth section. This view does not appear to us to be sound; and whether the construction is to be settled upon strict grammatical grounds, or upon the more substantial one of the apparent intent of the framers of the law, the term "relatives" should be restricted to such as are specifically named in the preceding section. The fourth section provides, in case the deceased "shall leave no issue, nor widow, nor father, his estate shall descend in equal shares to his brothers and sisters, and to the legal representatives of any deceased brother, or sister," c. From this language it is apparent, that this section was intended to *455 apply to cases, where some of the brothers or sisters were still living, and not to cases, where they had all previously deceased.
Upon a careful examination of the whole of the provisions of our statute, we are satisfied, that this case must be governed by the fifth rule instead of the fourth, and that the judgment of the county court was correct. The question is by no means free from difficulty, and this difficulty is occasioned by a variation of the phraseology of our Revised Statutes from the statute of 1821, which was substantially, if not literally, copied from the statute of 22 Car. II., which has also furnished the model for the statutes of distribution of nearly all the states in the union. Where a rule has been so long settled, and without any evil felt under its operation, we think, in order to effect so important a change, language should be used clearly evincing a design to do so, — which we are not able to discover in the present instance. If the case comes within the fifth rule, no question is made, but what the distribution should be per capita, among the children of the intestate's deceased brothers and sisters, to the exclusion of the grand children.
The judgment of the county court is therefore affirmed, and the clerk will certify the same to the probate court accordingly.
