29 Md. 120 | Md. | 1868
delivered the opinion of the court.
The deceased, the distribution of whose estate is the subject
After administration had, and the personal estate of the deceased was ready for distribution among those entitled, questions arose, in the Orphans’ Court of Baltimore City, as to whom, and in what manner, such distribution should be made.
The Orphans’ Court, upon hearing the respective parties in support of their claims, ordered that the estate be distributed to the nephews and nieces of the intestate, excluding the grandnephews and grand-nieces ; and that such distribution be made amongst the parties per capita, and not’ per stirpes. And from this order, some of the nephews and nieces, feeling themselves aggrieved by this mode of distribution, have taken this appeal. And the record presents two questions to be deter.mined by this court :
1st. Whether the grand-nephews and grand-nieces are entitled to share in the distribution ; and if not,
2nd. Whether the distribution among the nephews and nieces should be per capita or per stirpes.
These questions depend for their correct determination upon the construction of those sections of the 93d Article of the Code of Public General Laws, that relate to, and direct the manner of distribution of an intestate’s personal estate among his collateral relations.
And first, as to the right of the grand-nephews and grandnieces to share in the distribution. The only provision in the Article of the Code just referred to, upon which their claim could be founded, is in sec. 131, which declares *that “ 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 amongst such collaterals shall be allowed.” And to allow them to share in the distribution when there are those, as in this case, of a nearer degree of relationship to the intestate, it must be supposed that they ’ are embraced by the word “ descendants “
Next, as to the mode of distribution. This is a part of the case that has been most extensively argued, and about which it was supposed there exists the greatest difficulty. And certainly, great diligence has been displayed by the respective counsel, in bringing to the view of the court all the authorities supposed to bear upon the question, and they were ex*pounded and applied with rare skill and ability. But we think, in deciding this question, but little aid can be derived from adjudged cases on questions of distribution, arising elsewhere than in our own courts. The English statute of distribution of 22 and 23 Car. .11. ch. xo, upon the construction of which most of the cases cited have occurred, is not in force here, and by the Act of 1798, ch. 101, since incorporated into our Code, the Legislature of this State adopted rules and principles of distribution materially variant from those of the British statute. Hence, the adjudication as to the construction of the latter statute, can have but slight application to the question under consideration.
It is contended on the part of the appellees, that as the distributees here are all in equal degree of relationship to the intestate, they do not stand in the place of their parents, and take by representation, but that they each take in his or her own right, an equal portion of the estate. Such is, unquestionably, the rule established by many decided cases upon the English statute of distribution, and such would be the rule here, if our statute contained the same provisions upon this subject as that of Car. II. But, as we have before said, the statutes are different, and hence the English decisions do not apply. Under the English statute, these distributees would take as next of kin simply, and by virtue of their own proper degree of relationship to the intestate, and not as representatives of *their deceased parents, and, of necessity, would take per capita. There it would only be necessary to ascertain who are the persons standing in the nearest degree of kin to the intestate, to determine who are entitled ; and those “ who are in equal degree ” take equally ; representation being allowed only in cases where it is necessary to avoid excluding those in a remoter degree. And this rule applies, under that statute, to both the lineal and collateral lines. As, for instance, where the intestate’s children are all dead, all of them having left children, some one number and some another, in that case, all the intestate’s grand-children share equally ; for, as his children are all dead, their children take as next of kin, and, therefore, take per capita. But under our statute a different rule obtains.
The 128th section, when it declares that if there be no child, descendant, or father of the intestate, the brothers and sisters, and their descendants, shall have the whole, simply
We are, therefore, of opinion that the Orphans’ Court committed error in ordering the distribution to be made among the nephews and nieces of the intestate, in equal portions, or per capita, instead of per stirpes ; and the order appealed from must, therefore, be reversed. And the cause will be remanded to the Orphans’ Court that distribution may be made in accordance with this opinion.
The costs in this court, and those attending this controversy in the court below, to be paid out of the assets of the estate.
Order reversed and cause remanded.