119 Misc. 267 | N.Y. Sup. Ct. | 1922
Though the answer denies the material allegations of the complaint, and the reply the material allegations of the counterclaim, it is conceded there is no dispute in the facts. The question is solely one of law. Defendants move for a judgment under rule 113 for the relief demanded in their answer, namely, that the complaint be dismissed and the defendants be adjudged the owners of the property, and upon their counterclaim. The plaintiff although not having given any notice of motion seeks a decision in his favor under rule 112. Summary judgment may be given although a counterclaim be interposed. Chelsea Exchange Bank v. Munoz, 202 App. Div. 702. And I see no reason why such a judgment may not be given upon a counterclaim in a proper case. Nor should relief be denied under rule 113 because the only question involved is one of law. Coutts v. Kraft & Bros. Co., 119 Misc. Rep. 260. Moreover, both sides submit the legal question involved for decision in this manner. There is no reason why it should not be decided now, thus avoiding delay.
The question is as to the right to inherit under the Statute of Descent. In 1902 the property in question was owned by Joseph Short, Jr. By his will it was devised to his daughter Stella. Stella married Louis O. Rotenbach, the plaintiff in this action. In 1918 Stella Rotenbach died intestate seized of the premises, leaving no descendant nor had any child ever been born to her, and she was not survived by either father or mother, or brother or sister or descendants of them of the whole blood. After her father’s death her mother had remarried and had children who thus became the half-brothers and sister of Stella Rotenbach. At the time of the latter’s death her half-brothers and sister were not alive but had left descendants who were her nieces and nephews of the half-blood. Stella Rotenbach also left cousins. They were children of the deceased sister of Joseph Short, Jr., the father of Stella. The plaintiff claims title under deeds from these cousins of Stella. The defendants, who are the nieces and nephews of the half-blood of Stella, claim title as her heirs.
The sole question is, did the cousins of the Short blood take to the exclusion of the nieces and nephews of the half-blood who were not of the Short blood? Were there no question of half-blood and ancestral estate involved it is conceded the nieces and nephews would take to the exclusion of the cousins. Matter of Butterfield,
At common law collaterals of the half-blood were excluded from inheritance in real property. The sixth canon of descent provided: “ That the collateral heir of the person last seized must be his next collateral kinsman of the whole blood.” 2 Black Comm. 224. Prior to the independence of the crown the common law of England regulated descents in this state. Fowler’s Decedent Estate Law, 350. And to this day in cases not provided for by statute the common law still controls the inheritance or succession. Decedent Estate Law, § 92; Hunt v. Kingston, 3 Misc. Rep. 309. It follows from the foregoing that in this state collaterals of the half-blood inherit only in so far as that has been prescribed by statute.
The first act regulating descents in New York was passed in 1782. It is chapter 2 of the Laws of 1782. This statute after providing for the inheritance of descendants continued: “ In case the said person so seized shall die without lawful issue leaving brothers, or leaving a brother or brothers, and a sister or sisters of the whole blood, the inheritance shall descend to such brothers or to such brother or brothers, and sister, or sisters as the case may be, as tenants in common, in equal parts.” And it further provided that if any such brother or sister shall have died leaving issue the issue shall inherit. This was as far as that statute went and it expressly provided that “ in all cases of descent not particularly provided for by this act the common law shall govern.” Under the provisions of this statute it is plain that relatives of the half-blood would not inherit.
The foregoing act was repealed as to subsequent descents by a new act passed in 1786. This is chapter 12 of the Laws of 1786. After providing that descendants should inherit, it enacted:
“ Thirdly, In case the said person so seized shall die without lawful issue, leaving a father, then the inheritance shall go to the father of the said person so seized in fee-simple, unless the
“Fourthly, In case the said person so seized, shall after the death of his or her father, die without lawful issue leaving a brother or sister, or leaving a brother or brothers and a sister or sisters, the inheritance shall descend to such brothers or sisters, or to such brother or brothers and sister or sisters, as the case may be as tenants in common, in equal parts. And in such case every brother and sister of the half blood, of the said person so seized, shall inherit equally with those of the whole blood; unless where such inheritance came to the said person so seized, by descent, devise, or gift of some one of his or her ancestors; in which case, all those who are not of the blood of such ancestor shall be excluded from such inheritance.”
It further provided that the issue of any deceased brother or sister should take the latter’s share. This was all that the statute provided as to descent and it again expressly stated that in all cases not provided for the common law should govern. This statute for the first time changed the common-law rule so as to admit brothers and sisters of the half-blood and their children into collateral succession. But it limited such right where the inheritance came from an ancestor whose blood was not in the relatives of the half-blood.
This seems to have continued to be the law until the Revised Statutes were enacted. The only reference in them to relatives of the half-blood is in section 15. 1 R. S. 753; R. S. pt. II, chap. II, § 15. That reads: “ Relatives of the half blood shall inherit equally with those of the whole blood in the same degree; and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood; unless the inheritance came to the intestate by descent, devise, or gift of some one of his ancestors ; in which case, all those who are not of the blood of such ancestor, shall be excluded from such inheritance.” The note of the original revise to this section says: “ This section adopts the principle of the present law in reference to the kindred of the half blood, and extends that principle to the new cases introduced.” See Fowler’s Decedent Estate Law (Appendix II), 554.
When this provision of the Revised Statutes was repealed and embodied in the Real Property Law of 1896 slight changes in verbiage were made, and it became section 290. The .revisers’ note to that section states it is section 15 of the Revised Statutes “ unchanged in substance.” See Fowler’s Decedent Estate Law (Appendix III), 564. This section 290 is word for word the same
Thus it is apparent that from the time the half-bloods were first permitted by statute to inherit that right has always been restricted. And that restriction has related to cases in which the property came to the deceased from an ancestor to whom the half-bloods were not related by blood. The range of collaterals has been extended and the disability restricted, but the principle underlying the statutory provisions remains the same.
The meaning of section 90 and its forerunners seems plain. And but for one or two cases in this state and some in other states it would not be necessary to discuss it at such length. In considering its meaning the fundamental proposition that collaterals of the half-blood did not inherit at common law and inherit under our statute only in so far as that right has been expressly given must not be lost to sight. In other words, the half-blood can inherit only by virtue of section 90. If, they do not come within that section they are excluded. No other section gives them any right. When the first act was passed giving the half-bloods some right of inheritance (Laws of 1786, chap. 12), it was confined to brothers and sisters and their children, and the same provision in substance was made as is now in the statute where the property was an ancestral estate. That it was intended where the property came from an ancestor and the half-bloods were not of his blood they should be excluded, is emphasized by another provision of the same statute. This latter provision is that in any case where there is no issue of the intestate the inheritance shall go to the father unless it came to the intestate from the part of his mother, “ in which case it shall descend as if such person so seized had survived his or her father.” All the provisions of this statute indicate that the legislature intended that property that came from an ancestor should descend to those who were of the ancestor’s blood even though they were not the nearest heirs and so would not have taken had the property not come from the ancestor.
And the same general policy has continued in the statutes ever since. This is made manifest by numerous provisions in the Decedent Estate Law. It provides that the descent of real property shall be (1) to lineal descendants; (2) to father; (3) to mother, and (4) to collateral relatives, as prescribed (§ 81). Sections 82 and 83 apply to descendants. They do not contain any special provision for descent in the case of an ancestral estate, because all descendants of the intestate must be of the blood of the ancestor.
All of these provisions show it was the intention of the legislature to keep the inheritance within the blood of the ancestor. And this result is accomplished even though nearer relatives of the intestate who are not of such blood are thereby excluded. I think
That relatives of the half-blood, no matter what their degree of relationship may be, are excluded from taking where thé inheritance came from an ancestor of whose blood they are not, is the construction that has been placed upon section 90 by Mr. Fowler in his excellent work on Decedent Estate Law. See pp. 405, 406. That also is the construction given to it in many and in fact in all the older cases in this state which have come to my notice. Valentine v. Wetherill, supra; Conkling v. Brown, 57 Barb. 265; and see, also, opinion of William Inglis and Charles O’Conor, appended in note to that case; Wheeler v. Clutterbuck, supra; Matter of Wadsworth, 58 Misc. Rep. 489; Adams v. Smith, 20 Abb. N. C. 60; Adams v. Anderson, 23 Misc. Rep. 705; Matter of Reeve, 38 id. 409. And see, also, Matter of Simpson’s Estate, 144 N. Y. Supp. 1099, 1101.
The only cases in this state which are known to hold or even to suggest a contrary ruling are Farmers Loan & Trust Co. v. Polk, 166 App. Div. 43, 50, 51, and Matter of Mack, 179 id. 298. The point was not decided in the Farmers Loan & Trust Company case, the court stating that as it was unnecessary for it to decide the question they refrained from expressing any opinion upon it. The opinion does state that no authoritative decision upon the question in this state has been found. That there are such authorities has already been pointed out and in fact one of them (Wheeler v. Clutterbuck, supra) was cited in that opinion but on another point, and some of the other cases above mentioned were contained in the briefs submitted to the Appellate Division therein.
The construction of section 90 was involved in the decision of Matter of Mack. In the opinion in that case reference is made to the Farmers Loan & Trust Company case, and the writer of the opinion says that he is not aware that the precise question involved “ has ever been passed upon by any appellate court in
In Matter of Mack it is further held that the portion of section 90 relating to ancestral estates which excludes relatives not of the blood of the ancestor “ applies only in the case of such a sister where there is another relative of the blood of the ancestor related in the same degree to the intestate as the sister.” But the court adds (p. 300): “ We do not decide that the rule here applied extends to every class of relatives however remote the relationship to the intestate may be. We confine our decision to the precise question here involved; further we need not go.” In that case the property had come to the intestate from her mother. The intestate left a sister of the half-blood who was not of the blood of the ancestor, and a daughter of a sister of her deceased mother, who thus was a cousin of the intestate and of the blood of the ancestor. Under the statement last quoted from the opinion that case would not be an authority for the facts of the present case, for here there is no relative as close as a sister. But if the decision is sound I think it must necessarily be applicable to the facts of this case, and that the remoteness of the relationship of all concerned can make no difference.
Not being advised that the courts of this state had repeatedly construed this section in a uniform manner, and having its attention called to decisions in other states which had construed more or less similar provisions in a different way, the Appellate Division in Matter of Mack evidently adopted the rule laid down in those cases. And there are authorities in several states more or less at variance with those in ours. Ryan v. Andrews, 21 Mich. 229; Rowley v. Stray, 32 id. 70; Robertson v. Burrell, 40 Ind. 328; Pond v. Irwin, 113 id. 243; Estate of Kirkendall, 43 Wis. 167; Estate of Smith, 131 Cal. 433. In Ryan v. Andrews the rights of the half-blood
The statute in Indiana is essentially different from ours and hence the cases cited from that state are not in point. In Estate of Kirkendall everything that was stated on the point now under discussion was obiter, the court merely deciding that the provisions of the statute as to descent did not apply to the transfer of personal property which was all that was involved in that case. In one of the opinions rendered the matter was discussed and a construction given to the language which would be favorable to defendants’ contention here. But in that case no question of the half-blood was involved. The point was whether a paternal grandmother could take personal property to the exclusion of uncles
In Estate of Smith, supra, personal property only was involved, but the opinion states that under the laws of California the same rule is applicable to personal property as to realty. The opinion states: (p. 435): “ The provision [that excluding those not of the blood of the ancestor] has no application as between kindred in different degrees,” following the language of the Michigan and Wisconsin decisions. But the court further held that the use of the words “ brothers and sisters ” in another section of the statute included those of the half-blood although they were not expressly mentioned. Our courts hold otherwise.
It may be that all the decisions of the foreign states cannot be satisfactorily distinguished, but even if that be so I think the intention of the legislature was plain and the meaning of our statute is clear. I cannot accept either the reasoning or the result of the other cases. Under our law the half-blood are permitted to inherit only by virtue of section 90. And by that very section they may not take an ancestral estate or share in it unless they are of the blood of the ancestor.
But were I less satisfied that this was the proper construction to be given to the section I certainly would be loath at this late day to place a different construction upon it. The construction stated is the one that has been given to the section by the highest court of this state and other courts thereof and thus it has become a fixed rule of property. After it has thus been in force and effect unchallenged for nearly a century to now change the ruling would work a grave injustice and would impair many titles.
In these days when a memorandum upon the law that is worthy of the name is quite a rarity, I must acknowledge my appreciation of the most excellent brief submitted in this matter by plaintiff’s attorney.
The defendants are not entitled to take, because they are not of the blood of the ancestor. The plaintiff has the title of those who were of the blood of the ancestor and hence there should be judgment in his favor.
Judgment accordingly.
