Houston v. Davidson

| Ga. | Jan 15, 1872

McCay, Judge.

The progress of civilization and the spread of correct ideas has now almost obliterated the old notion that illegitimates are outcasts. They do not inherit from the father, because the marriage tie — the proof that they are his children — does not exist between him and the mother. But no such proof being needed, as to their connection by blood with the mother, or with the brothers and sisters of her womb, they inherit.

It is in Georgia, now, only a question of legal proof of blood connection, since now legitimates and illegitimates inherit equally from the mother, and a legitimate brother or sister may, in some cases, inherit from an illegitimate: Code, 1791, 1792. So the marriage of the parents legitimates the children born before: Code, 1788. The whole spirit of our law is to put them on the same footing of legitimates, as to their mother and to the children of her womb.

We hold, therefore, that the Act of 1859, extending the principle of representation among collaterals to the grandchildren of brothers and sisters, extends to the case where the estate for distribution is the estate of an illegitimate. The language of the Act is broad enough to cover the case. The Act of 1816 had provided that collaterals should take among themselves, as though the deceased were born in lawful wedlock. And why not? There may be good reason why there should be trouble as to how a bastard should inherit, but why inheritance from him should differ from inheritance from a legitimate, we do not see. The Act of 1816 and the Act of 1859, taken together, we think, extends the principle of representation to the grand-children of the brother of a bastard, in all cases happening while that Act is of force. The same principle is carried into the Code, and we see no reason to keep up a distinction which is not founded in common sense, or common charity, unless compelled to do so by express law.

Our Statute of Distributions before the Code, as to distribution among collaterals, is almost the words of the English Statute : 2 Blackstone, [515.] By the settled rule for the construction of that Act, if the brothers and sisters be all dead at the death of the intestate, the next of kin take per capita. The doctrine of representation only comes in when a portion only of the brothers or sisters have died, leaving children : See 2 Black. [517,] and this is a very reasonable and proper construction. So, by our law, up to 1859, representation among collaterals did not extend further than to the children of brothers and sisters, and had the intestate died before 1859, the distribution would have been per capita among the living nephews and nieces alone, since there were no uncles or aunts. After 1859, the Statute of Distributions stood altered so as that the child or children of the intestates’ nephews and neices are entitled. The Code expresses the same idea, section 24.48, by declaring that “ the children or grand-children of brothers and sisters shall represent and stand in the place of their deceased parents.” The only question there can be as to these changes in the general law on the subject of representation among collaterals, is, whether it was the intention of the Legislature to keep up the English rule, that when the collaterals do not all stand in equal degree, the distribution is per stirpes and not per capita. Without doubt, it is the rule, that if any of the brothers or sisters be living, and there be children living of deceased brothers or sisters, then, as those entitled do not stand in equal degree, the distribution is per stirpes. But if the brothers and sisters be all dead, then, by the English rule, as representation stops, and those who take it all must take in equal degree, the distribution is always per capita. Our Act of 1859 extends the principle of representation to grandchildren of brothers and sisters, and by applying the English principle, if those who are entitled, not standing in equal degree, the distribution is to be per stirpes. So that in this case, the Court below has made the distribution per stirpes ; that is, he has divided the whole into as many parts as there were brothers and sisters living, and given to each set of nephews a share. Then divided that share among the nephews, giving to the children of a nephew, when that nephew is dead, their father’s or mother’s share. In other words, the Court has declared that, as it has so happened, that there are grand-children of a brother, the old rule, which made the division per capita, when all the brothers and sisters were dead, is changed, and the division is per stirpes, even among the nephews.

We do not think this was the intent of our Act of 1859, nor of the Code. The words of the Act of 1859 simply amend the Act of 1804, “so far as it restricts the distribution of in-testates’ estates among collaterals to the child or children of intestate’s brothers and sisters, by providing that it, to-wit: the distribution, shall “ extend to and embrace the child or children of intestate’s nephews and nieces.” We do not think, therefore, it was intended to change the manner in which the nephews and nieces were to take, but only to provide that the grand-children of a brother or sister should take their father’s share; that they should be let in, even though all of the class next above them in the scale should not be dead.

We think, therefore, the true rule under the Act of 1859 and of the Code, is, that the grand-child of a brother or sister shall simply stand in his father’s place; that the estate shall be distributed as though his father were living, and he shall represent him. If the nephews and nieces be all dead, then the distribution is per capita, no matter who takes. But if any of them be living, it is distributed, as though they were all living, the children of each one deceased standing in place of the parent. In other words, as by the rule, if the brothers and sisters be all living the distribution is per capita, so if nobody but nephews and nieces take, it is per capita. But, if one brother be alive, and must have his full share, the distribution is therefore per stirpes. So if all the brothers and sisters be dead, any nephew or niece must have his full share. This can only be done by dividing it per capita, as to nephews and nieces, if there be any of that class living, and admitting the children of any deceased nephew or niece to the parent’s place. The object of the rule is that those nearest-of kin shall always get just the share they would have got if all of equal degree with them were living. This can only be done in a case where all the brothers and sisters be dead, by distributing, per capita, to the nephews and nieces, as though they were all alive, and allowing their children, if any nephew or niece be dead, to stand in the place of the parent. The nearest in blood thus get the largest portion, and equal portions, and those who come in by representation take the place of their parent. The rule adopted by the Court below gives those nearest and equal in blood unequal shares.

It is, therefore, our opinion that the principles of the common law and the intent of our Legislature, in making the change, will be best carried out by holding, that if all the brothers and sisters be dead at the death of the intestate, then the distribution is between the nephews and nieces, per capita, and if any of them be dead, leaving children, distribution is to be made as though the nephews and nieces were all alive, the children of the deceased nephew or niece standing in place of the parent.

Judgment reversed.