20 Haw. 114 | Haw. | 1910
OPINION OP THE COURT BY
At the hearing of the administrator’s petition for a decree of final distribution the plaintiffs, being a grandnephew and two grandnieces of the intestate, claimed to be entitled to share equally with the children of the decedent’s niece who survived her and had since deceased and assign error in the decree excluding them from taking. The decedent left a husband, whose share of one-half of the estate is not disputed, the question being whether the words in the statute (Sec. 2509 E. L.), “The children of any brother or sister by right of representation,” include grandchildren of a sister or brother, the statute upon the subject reading: “If she shall leave no issue, nor father, nor mother, her estate shall descend one-half to her husband and the other half to her brothers and sisters, and to the children of any brother or sister by right of representation.” In support of their contention that the statute does not include children of the first generation only the plaintiffs point out that if there were no nieces or nephews but only grandnieces and grandnephews who could not take, there would be no one to take the estate under the paragraph immediately following, reading: “If the intestate shall leave no issue nor father, mother, brother or sister, nor descendants of any deceased brother or sister, the estate shall descend to the intestate’s widow, if any; or in case the intestate be a woman, to her husband, if any;” and also that if there were no surviving husband, or wife but three grandchildren of a deceased uncle the grandchildren could not take as next of kin under the next provision of the statute: “If the intestate shall leave none of the said relatives surviving nor widow nor husband the estate shall
The decree was based, upon the decision of Chief Justice Judd in Aihonua v. Ahi, 6 Haw. 410 (1883), in which the defendant’s claim as grandson of the decedent’s sister was disallowed under the paragraph of the statute now under consideration, but before the amendment of 1S98.
The object of the statutes of descent is to prescribe rules for succession of the property of any person dying intestate, which “shall descend to and be divided among his heirs as in this chapter prescribed.” Sec. 2507 N. L. The amendment, Oh. 1 S. L. 1872, gave-to the wife’s father and mother, brothers and sisters the same inheriting rights in her property which the husband’s relatives had and added the provision that in case of her leaving no issue, father, mother, brother or sister her estate went one-half to her husband, if any, and one-half to brothers and sisters of her father and mother (uncles and aunts) and to “their children and heirs by right of representation.” Such was the statute in 1883 when Chief Justice Judd held that the grandson of a deceased sister of the intestate did not inherit, as the statute does not say “to the children and heirs” of a deceased brother or sister; “if it did, Hiwauli, as the grandson of Hiki’s'sister, would inherit equally with Napoe. Napoe is one degree nearer Hiki than Hiwauli, and inherits to his exclusion.” Ahionua v. Ahi, 6 Haw. 410, 411. Although there has been no change in the paragraph of the statute under which that decision was made .the amending act
It may as well be inferred from the statute that the intention of the legislature was that if husband or wife should not survive, the next of kin should take in the absence of issire, father, mother, brother, sister, nephews or nieces — they being the relatives previously enumerated — as that only upon failure of those relatives and of grandchildren of brothers and sisters the next of kin should take; hut it is not so readily to be inferred that a widow or husband could take one-half of the estate if there were nephews and nieces but could take nothing if there •were only grandnieces and grandnephews. In order to avoid such an irrational disposition of an intestate’s property it would be necessary to consider that the word “descendants,” which includes grandchildren as well as children, is used cotenninously with “children” and is perhaps so used for no other reason than to avoid the more cumbrous expression of “grandchildren of a brother or sister.” The word “descendants” would not naturally be used for “children” in the meaning of offspring
There are numerous cases under wills “in which it has been held that the testator, by using the words ‘child’ and ‘issue’ indiscriminately, has shown his intention of using the former term in the sense of ‘issue’ so as to entitle grandchildren to take under it.” 2 Williams on Executors, 1183, and cases cited n. f., especially Prowitt v. Rodman, 37 N. Y. 42; and see Bowker v. Bowker, 148 Mass. 198, 203, and cases there cited.
There is a class of cases requiring that if any child of an intestate shall have been advanced by him in his lifetime an amount equal to the share allotted to the other children such child shall have no share of the estate or only' such share as when 'added to the amount advanced shall equalize the shares of the other children. As shown in Eshleman’s Appeal, 74 Pa. 42, the word “child” under such act, as well as-under English decisions upon an early statute to the same effect, is held “to extend to a grandchild,” so that “grandchildren and great grandchildren are all children and come within that to certain purposes.” And see under a similar statute in Beebe v. Estabrook, 79 N. Y. 246, 250, “the v'ord children in the section quoted is used to designate all the descendants of the intestate entitled to share in the distribution.” The reason for taking “children” to include “descendants” in cases of wills is well expressed in Mowatt v. Carow, 7 Paige’s Ch. 328, 333. “Where
A case which appears to be more directly in point than any others of which we are informed is Walton v. Cotton, 19 How. 355, under an act of 1832 giving pensions to revolutionary soldiers, which in case of the death of any person embraced by the act were directed to be made to his widow, “or if he leave no widow to his children.” The question was presented whether the statute would extend a bounty to grandchildren or restrict it to the children living at the time of the soldier’s death. The court held that “the •word ‘children’ in the acts embrace the grandchildren of the deceased pensioner whether their parents die before or after his decease,” basing this conclusion upon the fact that if there were “no widow or children, but grandchildren, the pension cannot be drawn from the Treasury. This would seem to stop short of carrying out the humane motive of Congress. They have not named grandchildren in the acts; but they are included in the equity of the statutes. And the argument that the pension is a gratuity, and was intended to be personal, will apply as well to grandchildren as to children.”
Considering the object and context of the present statute and its amendment in 1898, the rules for construction expressed in Secs. 9, 10, 11, 12 and 13 R. L., and the absurd results which otherwise would follow we are clearly of the opinion that the “children” intended include “grandchildren” in this case, so that the plaintiffs are entitled to a share of the intestate’s estate as claimed by them.
Decree reversed, case remanded for appropriate proceedings.
