14 Me. 309 | Me. | 1837
After a continuance, for advisement, the opinion of the Court was drawn up by
-By our statute, c. 38, sec. 17, respecting wills and testaments, and regulating the descent of intestate estates, it is enacted, that when any person shall die seised of any lands, tenements, or hereditaments, or any right thereto, or entitled to any interest therein, in fee simple or for the life of another, not having lawfully devised the same, the same shall descend in equal shares to his children and to the lawful issue of any deceased child by right of representation. When there shall be no issue, nor father, the same shall descend in equal shares to the intestate’s mother, if any, and to his brothers and sisters, and the children of any deceased brother or sister by right of representation, the collateral kindred claiming through the nearest ancestor to be preferred to the collateral kindred claiming through a common ancestor more remote. And when the issue or next of kin to the intestate, who may be entitled to his estate by virtue of the said act, are all in the same degree of kindred to him, they shall share the same estate
The question to be decided in this case, is whether the right of heirship by representation extends beyond brothers’ and sisters’ children. Had the mother of the defendant’s ward survived her uncle, Miles Winslow, tlio benefit to the ward might have been different, not indeed as an heir to Miles, but to the ward’s mother. But on her death occurring in the lifetime of Miles Winslow, living her sister, who survived said Miles, this sister became by right of representation, sole heir of the proportion, which was coming to her father, Nathaniel.
Our statute does not, as in New Hampshire, declare “ no person is to be admitted as a legal representative of collaterals, beyond the degree of brothers’ and sisters’ children.” In some other States of the Union, a similar provision is made. It would be superfluous here to malee the limitation, because when the estate is directed to descend to a brother or sister, it is not to their legal representatives, but to their children by right of representation, using the word in its appropriate sense.
The rightful claimant of the estate, must be one who claims not only through the nearest ancestor, but also as the next of kin. If brothers and sisters be all dead, leaving children, they take as next of kin; but if some of those children of a brother should bo dead, while others are living, such children cannot take, for they are not next of kin as long as any of the brother’s children be living.
This provision, therefore, has the same effect, and produces the same result, as is produced by those statutes, which direct the estate to be distributed to the next of kin and their legal representatives, restraining representation to brothers’ and sisters’ children. Reeves on Descents, 115, 116. A case not unlike this occurs in Comyn’s R. 87, Rett v. Rett. It was a motion for a mandamus to the spiritual court to make distribution according to the statute, 22 and 23, Car. 2. c. 10. The libel against the administrator set forth the case, that the intestate had two brothers who had issue and died:
