28 Wis. 90 | Wis. | 1871
In the year 1843, John Prescott died intestate, leaving surviving him his widow and their two minor sons, David and Philo John. At the time of his death he was seized
After the death of Pbilo John, tbe plaintiff acquired tbe right, title and interest of tbe sister and of tbe heirs of two deceased brothers of John Prescott in and to such land; and tbe defendant acquired tbe right, title and interest of tbe daughters of Reuben G-. Sawyer and bis wife, tbe widow of John Prescott, in and to tbe same land, and was in possession thereof when this action was commenced; and the action was brought by the plaintiff to recover possession of an undivided half thereof.
Upon these facts tbe circuit court rendered judgment for tbe plaintiff for tbe possession of an undivided half of such land, and from that judgment tbe defendant has appealed to this oourt.
Tbe question to be determined is, whether, upon tbe death of Pbilo John Prescott, tbe land descended to his next of kin, to tbe exclusion of bis sisters of tbe half blood, or whether it descended to such sisters of tbe half blood.
The Revised Statutes of 1858, chap. 92, sec. 4, provide that “kindred of the half blood shall inherit equally with those of tbe whole blood, in tbe same degree, unless tbe inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case all those wbo are not of tbe blood of such ancestor shall be excluded from such inheritance.”
It is claimed by the counsel for tbe appellant that this provision is not applicable in a case where the intestate leaves
Besides, it seems to me that the legislature would naturally be more solicitous to preserve tie estate of the ancestor .in the hands of his near kindred, such as children, father or mother, than it would be where there is a failure of such kindred, and the estate necessarily goes to more distant and collateral branches of his family.
I conclude, therefore, that if the land in controversy came to Philo John Prescott ’by descent from his father, it did not descend to the sisters of the half blood on the death of Philo John, but to the brother and sister of John Prescott who were living at that time, and to the children of his brothers who had deceased before that time, by right of representation.
That an undivided one half of the land did descend to Philo John from his father, seem too clear for argument. The only room for controversy is in respect to the other half thereof, which did not vest in him until the death of his brother David Prescott, in 1845. The question to be settled here is, whether he took such last mentioned half by descent from his brother or from his father. If from his brother, then the brother and not the father is the ancestor, and the sisters of the half blood, being of the blood of such ancestor, will inherit that half of the
When John Prescott and his son David died, the revised statutes of 1839 were in force, and it becomes necessary to refer to the provisions of law therein contained on the subject of the descent of real estate, before we can correctly answer the question under consideration. Section 38 of the act on this subject (p. 184) provides as follows: “When any person shall die seized of lands, tenements or hereditaments not by him devised, the same shall descend in equal shares to and among his children, and such as legally represent them (if any of them be dead), and in every case where children shall inherit by representation, it shall be in equal sharesand section 39 (p. 185) provides, that “when any of the children of the intestate die before his arrival at the age of twenty-one years, and unmarried, such deceased child’s share shall descend equally among the surviving brothers and sisters, and such as legally represent them.”
These provisions were borrowed from the laws of Massachusetts, and before they were enacted here, received judicial construction in that state. Sheffield v. Lovering, 12 Mass., 505, decided in 1815; and Nash v. Cutler, 16 Pick., 491, decided in 1835. As applied to the facts in this case, the principle established by those decisions is, that the purpose of both sections of the statutes of 1839, above mentioned (sections 38 and 39), is to regulate the descent of intestate estate. Section 39 does not make a rule for a separate and distinct case, but only modifies one of the rules of descent under given circumstances. It is an exception to the general rule contained in section 38. “The whole purpose is the descent of intes tate estate, and we think the effect is, that where, upon the descent of an estate to children, one of them shall happen to die in infancy, that is, at any time before arriving at the age at which, by law, he has the power of disposing of his estate, and
It follows that the sisters of Philo John, of the half blood, under whom the defendant claims title to the land described in the complaint, are excluded from the inheritance thereof as heirs of Philo John, and the land descended to the living brother and sister and to the children of the deceased brothers of John Prescott.
Tbe judgment of tbe circuit court must be affirmed.
By the Court — Judgment affirmed.