12 App. D.C. 68 | D.C. Cir. | 1898
delivered the opinion of the Oourt:
The questions presented by these appeals are mainly of mere statutory construction, and the learned justice below only followed the settled construction of the Maryland statute of 1798, Ch. 101, Subch. 11, in force in this District, as that statute has been construed by the Maryland Oourt of Appeals, and applied in the practical administration and distribution of decedent’s estates, both in that State and in this District. The construction adopted has furnished, and, it has been supposed, settled an important rule of property; but if it be apparent, as contended by the appellants, that there is clear error in the construction heretofore adopted, it becomes the duty of this court to correct such erroneous construction, and settle the practice accordingly.
It is contended by the appellants, on the appeal of the surviving children of Robert Holt, deceased, that the principle of per capita distribution should have been applied whereby each of the surviving nephews and nieces of the intestate would be entitled to receive one-nintlx of the fund for distribution, instead of per stirpes distribution, whereby the fund was primarily divided into third parts, and then, where there were more than one of such surviving children of the respective stocks, the third was divided among them per capita. Aixd this contention is founded upon decisioxxs, applying the principles of the Roman civil law, in tlxe coxistructioxx of the English statutes of distributions of 22 aixd 23 Charles II, Ch. 10, explained axid modified by statutes 29 Charles II, Ch. 30, and 1 Jac. 2, Clx. 17. The celebrated statute of 22 and 23 Charles II, Ch. 10, passed ixx 1670, was largely copied from the 118th Novell of Justinian; and accordixxg to a statement made by Lord Chief Justice Holt, in Pett’s Case, 1 P. Wms. 25; Salk. 250, the statute was drawn by Sir Walter Walker, a famous civilian, and the purpose was, as it would seem, to introduce the rules and principles of the Roman civil law into the English law of distribution of personal estate. The statute, however, gave rise to axi immense amount of litigation before settled rules of construction were finally agreed upoxx by the courts, as the numerous cases found in the reports will show; and it was not until late in the last century that many of the doubts and difficulties in regard to questions arising upon the statute were settled in the English courts.
In the case before us, there being no widow or descendants of the intestate, we are concerned only with the col-laterals of the deceased. By the 6th section of 22 and 23 Charles II, it is provided that, “In case there be no children, nor any legal representatives of them, then one moiety of the said estate to be allotted to the wife of the intestate, and the residue of said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree, and those who legally represent them.” And by section 7 it is provided, “That there be no representations admitted among collaterals after brothers’ and sisters’ children; and in case there be no wife, then all the said estate to be distributed equally to and amongst the children; and in case there be no child, then to the next of kindred in equal degree of or unto the intestate and their legal representatives as aforesaid, and in no other manner whatsoever.”
These sections have given rise to most of the questions that have perplexed the English courts upon the subject of distributions. But without extending this opinion by referring specifically to the many English decisions, we may state the result of them, by quoting a passage from Williams on Executors and Administrators (4th Ed.), pages 1298-9, in which the author says :
“The seventh section of the Statute of Distribution provides that there shall be no representations admitted among collaterals after brothers’ and sisters’ children. This provision must be construed to mean brothers and sisters of the intestate,- and not as admitting representation, when the distribution happens to fall among brothers and sisters, who are remotely related to the intestate; for the intestate is the
The distinction in the application of the principles of the per stirpes and the per capita distributions, as allowed in the English lawr of succession and descents, is now'here better or more clearly stated than in 2 Blackstone’s Commentaries, page 217. The author, in explaining the fourth canon of descents, says: “This taking by representation is called succession in. stirpes, according to the roots; since all the
And again, in the same book, in treating of title by testament and administration, at page 517, the author says:
“Before I quit the subject, I must, however, acknowledge that the doctrine and limits of representation laid down in the statute of distributions seem to have been principally borrowed from the civil law; whereby it will sometimes happen that personal estates are divided pm' capita and sometimes per stirpes; whereas the common law knows no othbr
It thus appears that, by the terms, and the principles applied in the construction of the English statute of distributions, the right or privilege of representation among collaterals is expressly limited, and does not extend to any more remote descendants of brothers and sisters than their children, and does not apply at all to any case where the next of kin are all more remote than their brothers’ and sisters’ children. If, therefore, the case of the surviving nephews and nieces of the intestate, the children 6f the deceased brother Robert Holt, were to be decided according to the English statute of distributions, and as that statute has been expounded in the light of the civil law, there could be no doubt but that the distributions to the surviving nephews and nieces of the intestate, they all being in the same degree of kindred, would have to be made per capita and not per stirpes; and it is equally clear, that under the English statute, and the principles that have been applied in its construction, the grandnephew of the intestate, son of Joseph I. Holt, deceased, would not be entitled to share in the distribution.
But the English statute of distributions of 22 and 23
It does not appear that there was ever any judicial construction of that act made, apart from .the construction by the English courts of the corresponding provisions contained in the statute «of Charles II. But this act of 1715, and, all subsequent acts, both of the provincial and State legislatures, in force at the time of the passage of the act of 1798, Ch. 101, were superseded or repealed by the latter act. Prior to that time, the statute laws of the State, relating to testamentary and administration affairs of personal property, seem to have been in a state of doubt and confusion, and the legislature, to remove the difficulty, authorized or requested Chancellor Hanson, then the chancellor of the State, to prepare an act for amending, and reducing into system, the laws and regulations concerning last wills and testaments, the duties of executors and administrators, and the rights of orphans and other representatives of deceased per
It is quite clear, therefore, that if either the English act of distribution of 22 and 23 Charles, or the provincial act of Maryland of 1715, contained anything inconsistent with or repugnant to the provisions of the act of 1798, Ch. 101, or the subjects of those prior acts were fully embraced within the provisions of the Act of 1798, the prior acts would be completely repealed and superseded; and that such prior acts, for the reason just stated, have been treated and regarded as repealed or entirely superseded by the act of 1798, is very satisfactorily shown, if it were not otherwise apparent, in 1 Kilty’s Laws of Maryland, in a note to the titling of the act of 1715, Ch. 39, the act itself being omitted from the compilation.
It is clear, therefore, that the questions presented on the present appeals must be determined, according to what is adjudged to be the proper construction of the sections of subchapter 11, of the act of 1798, Ch. 101, prescribing rules for the distribution of intestates’ estates.
The first three sections of this Subch. 11, direct the manner of distribution of the estate of the intestate where the latter leaves a widow; and the next three sections, 4, 5 and 6, direct the manner of distribution where the intestate leaves children surviving; and the seventh section directs distribution to the father of the intestate, if surviving, and
“ 8. If there be a brother or sister, or child or descendant of a brother or sister, and no child, descendant, or father of the intestate, the said brother, sister, or child, or descendant of a brother or sister shall have the whole.
“9. Every brother and sister of the intestate shall be entitled to an equal share, and the child or children of a brother or sister of the intestate shall stand in the place of such brother or sister.
“10. If the intestate leave a mother, and no child, descendant, father, brother, sister, or child or descendant of a brother or sister, the mother shall be entitled to the whole; and in case there be no father, a mother shall have an equal share with the brothers and sisters of the deceased, and their children and descendants.
“11. After children, descendants, father, mother, brothers and sisters, of the deceased, and their descendants, all collateral relations, in equal degree, shall take, and no representation among such collaterals shall be allowed; and there shall be no distinction between the whole and the half-blood.”
As will be observed, it is not declared in the eleventh section just quoted, as in the English statute of distributions, “that there shall be no representations admitted among collaterals after brothers’ and sisters’ children;” but the declaration in the Maryland statute is, that after brothers and sisters of the deceased, and their descendants, all collateral relations in equal degree shall take, and no representations among such collaterals shall be allowed. The words “their descendants,” as here used, and in respect to the right of representation, must be construed to mean children of brothers and sisters; and so construed, the exclusion of the principle of representation and the adoption of the per capita distribution can only be applied after brothers’ and sisters’ children, and not as under the English statute, where all the brothers and sisters are dead,
There is no difficulty in perceiving the difference in the terms and their collocation, and consequent difference in signification, between the language employed in the act of 1798, and that employed in the English statute of Charles II, and the provincial act of Maryland of 1715, in formulating the rules of distribution. But we are urged, however, not to construe the language of the act of 1798 literally or strictly, but that we should take the terms employed by the legislature as intended to express the rules of distribution that had been deduced from the provisions of the English act of Charles II, construed according to the principles of the Roman civil law. But to do this, we should have to interpolate into the statute several very important restrictive terms, and terms of classification, which the legislature has thought proper to omit. The rules of construction that had been settled by the English courts, as
Having thus adopted the common law principle of representation for making division of the real estate of an intestate among collaterals, it is not at all remarkable that the doctrine of representation in regard to the distribution of personal estate of an intestate, was given a more extended and unqualified application than by the English statute of distributions, in respect of distributions to brothers’ and sisters’ children.
The question presented on the appeal of the children of Robert Holt, deceased, is not a new question. It was fully and elaborately argued by able counsel, and carefully considered by the Court of Appeals of Maryland, in the case of McComas et al. v. Amos et al., 29 Md. 120. In that case, an intestate died leaving no widow and leaving no child or de
Without further amplification, it is sufficient to say, that upon the fullest consideration of this question, and all the arguments and authorities presented for our consideration, on this appeal, we have not been able to reach any other conclusion than that arrived at in the case of McComas v. Amos, and upon which the learned justice below mainly rested his decision. We must, therefore, affirm the decree appealed from by the children of Robert Holt, deceased* awarding distribution per stirpes among the nephews and nieces of the intestate, to the exclusion of the grandnephew, Joseph H. Holt, the minor child of Joseph I. Holt, deceased, a nephew of the intestate.
2. With respect to the appeal taken on behalf of Joseph H. Holt, the minor grandnephew of the intestate, little need be said. It follow's from what we have already said in considering the appeal taken by the children of Robert Holt, deceased, that the grandnephew in this appeal is not entitled to share in the distribution of the personal estate of the intestate with the nephews and nieces who take per stirpes. That the father of Joseph H. Holt, the appellant, having died in the lifetime of the intestate, he could not be included among the surviving nephews and nieces and made to participate in a per stirpes distribution, as that would have lessened the distribution to them, and they are preferred to those more remotely related to the intestate, such as the
Decree on both appeals affirmed.