32 Mich. 70 | Mich. | 1875
The controversy in this case concerns the title to a parcel of land formerly owned by David Mann, and which on liis death passed under the statute of descents to David Al
The statute of descents, so far as it affects the present case is as follows:
“(4309). When any person shall die seized of any lands, tenements or hereditaments, or of any right thereto, or entitled to any interest therein in fee simple, or for the life of another, not haying lawfully devised the same, they shall descend subject to his debts, in manner following:
“First, In equal shares to his children, and to the issue of any deceased child by right of representation; and if there be no child of the intestate living at his death, his estate shall descend to all his other lineal descendants; and if all the said descendants are in the same degree of kindred to the intestate they shall share the estate equally; otherwise they shall take according to the light of representation;
“Second, If he shall leave no issue, his estate shall-descend to his widow during her natural lifetime, and after her decease to his father; and if he shall leave no issue or widow, his estate shall descend to his father;
“ Third, If he shall leave no issue, nor widow, nor father, his estate shall descend in equal shares to his brothers and sisters, and to the children of any deceased brother or sister by right of representation: Provided, That if he shall leave a mother also, she shall take an equal share with his brothers and sisters:
*73 “Fourth, If the intestate shall leave no issue, nor widow, nor father, and no brother nor sister, living at his death, his estate shall descend to his mother, to the exclusión of the issue if any of deceased brothers or sisters;
“Fifth, If the intestate shall leave no issue, nor widow, and no father, mother, brother, nor sister, his estate shall descend to his next of kin in equal degree, excepting that when there are two or more collateral kindred in equal degree, but claiming through different ancestors, those who claim through the nearest ancestor shall be preferred to those claiming through an ancestor more remote: Provided, however,
“Sixth, If any person shall die leaving several children, or leaving one child and the issue of one or more other children, and any such surviving child shall die under age, and not having boon married, all the estate that came to the deceased child by inheritance from such deceased parent shall descend in equal shares to the other children of the same parent, and to the issue of any such other children who shall have died, by right of representation;
“Seventh, If at the death of such child who shall die under age, and not having been married, all the other children of his said parent shall also be deád, and any of them shall have left issue, the estate that came to said child by inheritance from liis said parent shall descend to all the issue of other children of the same parent; and if all the said issue are in the same degree of kindred to said child, they shall share the said estate equally, otherwise they shall take according to the right of representation;
“Eighth, If the intestate shall leave a widow and no kindred, his estate shall descend to such widow;
“Ninth, If the intestate shall leave no widow nor kindred, his estate shall escheat to the people of this state for the use of the primary school fund.”
A subsequent section provides:
“ (4-313). The degrees of kindred shall be computed according to the rules of the civil law, and kindred of the half-blood shall inherit equally with those of the whole*74 blood in. the same degree, unless the inheritance come 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 plaintiff claims that, as the intestate left surviving him neither issue, nor widow, nor father nor mother, the land, under the third subdivision of § 4309, descended to the brothers and sisters; and, although it was ancestral estate, yet, as there were no brothers or sisters of the whole blood, this circumstance becomes immaterial, and those of the half-blood must inherit. On the other hand, the position of the defendants is, that as the father’s mother and the brothers and sisters of the half-blood all stand to the deceased in the same degree of relationship computed by the 'rules of the civil law, and as the latter are not of the father’s blood, they are excluded by the express terms of § 4313, and the father’s mother becomes sole heir. And this position would seem to be impregnable if descent under the facts of this case is to be determined on á computation of the degrees of kinship.
• It is very evident, however, that the statute has classified heirs by a designation, of relationship instead of by computation of degrees of kindred, and that it is only when no persons are found answering to the designation that resort is had to the computation. The descent; — saying nothing of representation of deceased persons who if living would have been heirs, — is: first, to children; second, to the widow and father, if any; third, to brothers and sisters and the mother; fourth, to the mother, when there is neither issue, widow, father, brother or sister; and when none are found in either of these classes, then, fifth, to the next of kin in equal degree under the rules which the statute lays down. It is obvious from this statement that when under the statute an estate passes to designated relatives,' it does so because of the particular relationship, and not because the persons who take are of kin to the intestate within any certain degree, measured by some arbitrary standard or mode of computa
There being in this case neither issue nor widow, nor father nor mother, the case is within the very words of the-third subdivision of § 4309, and the brothers and sisters must take unless this provision is qualified by some other. It is conceded that, when brothers and sisters are mentioned, the half-blood are included, and so are the authorities: Gardner v. Collins, 2 Pet., 58; Baker v. Chalfant, 5 Whart., 477; Clay v. Cousins, 1 Monr., 75; Clark v. Sprague, 5 Blackf., 412; Beebee v. Griffing, 14 N. Y., 235. The only provision which defendants rely upon as qualifying this is that contained in § 4313, that “kindred of the half-blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance come 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.”'
If this construction is sound, it is difficult to understand why a grandparent who is to exclude the brothers and sisters of the half-blood from the inheritance should not participate with brothers and sisters of the whole blood, or why the mother should not share the estate with the child. The only answer to such a suggestion is, that the descent is not made to depend on nearness of kindred, but on a statutory ■classification. But this answer is quite conclusive. It is ■only when a preferred class fails entirely that we are to look further to ascertain who in that contingency is to become the heir. And it is only Avhen all the preferred classes fail that a computation of degrees of kindred becomes necessary.
In the present case the preferred class having living representatives proves to be that which embraces brothers and sisters. If the estate were not ancestral, those of the whole and of the half-blood would take equally. Being ancestral those of the half-blood would bo excluded if there were any of the Avhole blood to take;- but as there are none, there can be no exclusion. If we understand § 4313 as a qualification of the whole statute, then we must apply it distributively to the several subdivisions of § 4309, and- so applied it can mean no more than this: that when the inheritance falls to a certain designated class of persons, these will share it equally unless the estate was ancestral, in which case the half-blood not of the blood of the ancestor shall be excluded. The exclusion goes no farther. It favors the whole blood of the particular class only, and does not pass the inheritance over to a subsequent class so long as any of the preferred class remain.
We have examined the several NeAv York, New Jersey, Rhode Island, Pennsylvania and Indiana cases cited on behalf of the defendants, and find nothing in them to qualify the views here expressed. They are not very directly in point, and
The judgment must be reversed, with costs of both courts, and judgment entered in this court for the plaintiff. The record will be remitted for any further proceedings.