18 Or. 367 | Or. | 1890
This case presents the single question, whether the real property already described passes to the defendant as next of kin, the former being the grandfather and the latter the uncle of the intestate. The whole matter depends upon the meaning to be given to subdivision 6 of section 3098, Or. Code: “If the intestate shall leave no lineal descendants, neither wife nor father, mother, brother nor sister, such real property shall descend to his next of kin in equal degrees,” etc. And section 3103 provides that
The reason is obvious. At common law the canons of descent grew out of the feudal "ystem. of tenures, and the policy of the State to establish and maintain a wealthy landed aristocracy, which cooperated to prevent the distribution of real property, and to promote its accumulation in the hands of the few. An important factor in working out this result was the common law mode of computing kindred, which, being alien in spirit to our political institutions, has been generally rejected, and in this State abrogated and the rules of the civil law adopted. In the mode of computing degrees of kindred, the civil law did not begin as at common law, and reckon from the common ancestor downwards to each of the persons related, or to the most remote of them, but from the person a quo upwards to the common stock, and then downwards to the
A glance at the statute will satisfy any one that, in the absence of those specified, the estate goes to the next of kin as computed by the civil law. The course is prescribed -by the statute without reference to the source from which the property was acquired. While it may be admitted that whenever a statute does not prescribe in a given case to Whom an estate shall descend, that the common law rule prevails for ascertaining who is the person or heir entitled
It follows, there was no error, and that the judgment of the court below must be affirmed.