30 Tex. 637 | Tex. | 1868
The question presented by the record in this case for our consideration is, the true and proper construction of the statute of descents and distributions upon the following state of facts:
William Barnett died intestate in the year 1865, without leaving a wife surviving him, without issue, and without lineal ancestors; but leaving eleven uncles and aunts and two nephews in being at the time of his death, who were his nearest of kin, and therefore were alone the takers of his estate by inheritance.. Eight of the uncles and aunts and the two nephews were of the maternal kindred, and the two other aunts and the uncle were of the, paternal kindred.
The object sought by this writ of error is, the rule of partition and distribution among these heirs-at-law of the intestate.
It will be readily conceded that these uncles, aunts, and nephews are the only persons who can take by inheritance from the intestate, and they are not kindred in an equal degree. By the common law the uncles and aunts are kindred in the first degree, and the nephews in the second degree. By the civil law the uncles and aunts are related in the second degree, and the nephews in the third degree. But whether the relationship be computed by the canon of the common or the civil law, their respective portions of the inheritance are the same.
The statutes of descents and distributions in all countries are mere arbitrary rules, established by law for the regulation of the course which property shall take upon the death of the owner and possessor; and these rules are made to avoid the strifes and contentions which would ensue upon its necessary abandonment by death of the first holder, among those who might struggle to become the successors or seek to get possession. They are rules, therefore, estab
According to the facts of this case, there being neither children nor their descendants, nor brothers and sisters nor their descendants, nor any lineal ancestors of the intestate, in being at the time of his death; and-his nearest, collateral kindred in being when he died being these uncles, aunts, and nephews, it brings us directly to the . consideration of the 4th subdivision of the 2d section of the statute of descents and distributions, (Paschal’s Dig., p. 558,) which reads as follows: “If there be none of the kindred aforesaid, then the inheritance shall be divided
In this portion of the statute, there is no doubt in our minds, it was the intention of the "legislature to destroy effectually all discrimination or distinction between the relations on the father’s side and those on the mother’s side, because more in consonance with the general principles of American institutions and laws in regulating rights of property. It was to break down the more thoroughly the ideas and maxims of inheritance having their origin in the policies of the feudal system, and with which our civil polity, in all its departments, was deeply imbued, in consequence of the sources from which we mainly derived it.
Considering that the blood of the intestate flowed equally in the veins of the maternal as well as in the paternal kindred, and thereby a rightful heir might be as well traced' through the one line as the other, and, as a rule of property,it would be as fixed and determinate as any other rule, and more consonant with the general American system of more universal diffusion of property, the legislature very wisely, as we think, established this rule as a law of descent and distribution in this State, which certainly puts
By this provision, in a state of case like the present, the property of the intestate is divided into moieties. This division, by operation of law, ipso facto, creates two distinct estates, as a father, by his will creates two estates when he gives to his son his farm in the country, and to his daughter his mansion house in the city. The one division, creating distinct estates, is effected by operation of law; -the other, by the act of the party. They are distinct estates, being destined by the law for different objects, having no bond of union except through the intestate. When we start out to trace, by the physical law, under the mandate of the statute, the objects who are to take the inheritance, we are directed, first, to ascend to the father, and if he have descendants, we mount no higher up the ancestral line, but then descend through all the lines which have had their origin in him and the mother, as a common stock, and trace down each of those lines till the first living descendant is found in each, which will determine the true inherit- or in that line.
If the father or the mother be alive, the statute suggests a pause there, and a second division of that moiety of the estate is made, and the creation of two estates out of that moiety, one of which goes to the survivor and the other to the descendants of the deceased parent. And if there be no descendants of the deceased parent,, then the “whole estate” (which can mean nothing else than the whole of the moiety, already created by operation of law under such physical state of facts) is to be inherited by the surviving parent, thus putting a stop, by the express language of the statute, to the further progress of the inheritance. But when there are no descendants of such deceased parents, we are directed by the statute to mount one step higher in the lineal ascent, and, mutatis mutandis, the same process of tracing the lines of .descent to find the objects of the in
Ordered accordingly.