211 P.2d 407 | Idaho | 1949
It is unreasonable and unjust to interpret Section
Descent and distribution are controlled by statute and authority from other jurisdictions are not controlling. McComas v. Amos, 1868,
Common law rules are not relevant to the distribution of this estate; but, if they *66
were, the result would be the same. I.C.A., §§
Two of the fourteen have died since the death of the intestate. It is agreed that their shares descend to their children as representatives.
Subsections 3 and 5 of section
"3. If there be neither issue, husband, wife, father nor mother, then in equal shares to the brothers and sisters of the decedent, and to the children of any deceased brother or sister by right of representation."
"5. If the decedent leave neither issue, husband, wife, father, mother, brother nor sister, the estate must go to the next of kin in equal degree, excepting that when *67 there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor must be preferred to those claiming through an ancestor more remote."
It is appellant's position that the right of representation given to the children of any deceased brother or sister by the last clause of subsection 3 should be held to apply in all cases of inheritance by nieces and nephews even though there is no survivor among the brothers and sisters of the intestate. They cite: In re Jepson's Estate,
"4. If the decedent leave a surviving husband or wife and neither issue, father nor mother, the whole estate goes to the surviving husband or wife."
Under this provision the surviving husband or wife would inherit the entire estate whether there was a surviving brother or sister or not.
In McComas v. Amos, supra, it was held that under the Maryland statute, which provided that children of brothers and sisters "shall stand in the place" of his or their parents, nieces and nephews inherit per stirpes. The same Maryland statute was similarly applied and followed in Iglehart v. Holt, supra. We have no similar statutory provision. In Housley v. Laster, supra, the Tennessee court held that nieces and nephews take per stirpes. But the Tennessee statute expressly classes children of brothers and sisters as their representatives.
Central Hanover Bank Trust Co. v. Helme, supra, is a will case. It is cited in *68 support of the proposition that where there is doubt the courts award to issue per stirpes. The court was concerned with the meaning of the word "issue" as used by the testator. It is also to be noted that the case does not involve inheritance by collaterals, but deals with bequests and legacies to lineal descendants. Inheritance by lineal descendants is provided for by subdivision 2 of our statute. Claude v. Schutt, supra, also involving the construction of a will, dealt with lineal descendants and not collaterals. In re Healy's Estate, supra, is another will case in which the testator gave bequests to grandnieces and grandnephews "by right of representation." It was held that the distribution should be made per stirpes.
In re Yonk's Estate, supra, is a recent Utah decision. The intestate left as his sole heirs 24 nieces and nephews, sons and daughters of five brothers and sisters. The court held that the Utah statute requires distribution per stirpes in such case. The statute, both before and after the amendment of 1933, is set out in the opinion. Like the California statute the Utah law requires the surviving spouse to share with brothers and sisters of the decedent. In other respects, the original Utah act as to collaterals was the same as ours. Their subsection 6 (which, before the amendment, was the same as our 5) as amended provides:
"(6) If the decedent leaves neither issue, husband, wife, father, mother, brother nor sister, nor children or grandchildren of any deceased brother or sister, the estate must go to the next kin in equal degree, * * *." U.C.A. 1943, 101 — 4 — 5(6)
As to the effect of the amendment the court said [204 P.2d 457]:
"The revision of subsection (6) further assists in determining the legislative intent. Prior to the revision, a strict interpretation of the section would require that nieces and nephews be considered as inheriting under the provisions of this section. The early provision extended preference no further than surviving issue, husband, wife, father, mother, brother and sister. The amended and revised section included children or grandchildren of a deceased brother or sister with the more preferred class and withdrew them from the less preferred `next of kin' class."
Other jurisdictions having statutory provisions the same as, or similar to, our own have quite universally held that nieces and nephews take per capita and not per stirpes. In re Ingram's Estate,
In an excellent article "Per Stirpes or Per Capita", by Charles C. White, 13 Cincinnati Law Review 298, after a lengthy review of treatises, textbooks, and decisions, both English and American, in his summary he says;
"In the absence of phraseology to the contrary, both in statutes of descent and distribution and in wills, the distribution is per capita when the takers are in equal degree of consanguinity to the decedent. The distribution is per stirpes when the takers are not equally related to the decedent."
Appellants contend that under I.C. sec.
Appellants argue that a consideration of I.C.
Appellants call attention to the Probate Practice Act of 1864, Idaho Laws, First Session, 388. The pertinent provisions are as follows:
"* * * Third. If there be no issue, nor husband, nor wife, nor father, then in equal shares to the brothers and sisters of the intestate, and to the children of any deceased brother or sister, by right of representation: Provided, That if he or she shall leave a mother, also, she shall take an equal share with the brothers and sisters. Fourth. If the intestate shall leave no issue, nor husband, nor wife, nor father, and no brother or sister living at his or her death, the estate shall go to his or her mother, to the exclusion of the issue (if any) of deceased brothers or sisters. * * * Sixth. If the intestate shall leave no issue, nor husband, nor wife, and no father, mother, brother nor sister, *70 the estate shall go to the next of kin in equal degree."
It is urged that the exclusion clause in section "Fourth" implies that nieces and nephews would otherwise share in the estate even though no brother or sister survived. This is a logical inference. However, it is the statute as it now exists which we must construe. In Douglas v. Cameron, supra, the Nebraska court, construing a statute the same as the act of 1864, held that nieces and nephews inherit per capita. Likewise the California statute once contained this same provision. Statutes of California, 1862, page 570. Yet the California courts in the cases cited held that the inheritance of nieces and nephews in such cases is per capita. Our probate laws having come from California, the decisions of that state "are of high authority on the statutes construed." Short v. Thompson,
Moreover, the facts of this case fit exactly the provisions of subsection 5, sec.
The judgment of the district court is affirmed. Costs to respondents.
HOLDEN, C.J., and GIVENS, PORTER and KEETON, JJ., concur.
