Snow v. Snow

| Mass. | Jan 15, 1873

Morton, J.

Our statute of distributions provides that when a person dies intestate, leaving “ no issue, and no father, mother, brother, nor sister,” his estate shall descend “ to his next of kin in equal degree; except that when there are two or more collatteral 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 who is more remote.” Gen. Sts. c. 91, § 1, cl. 5.

We have no doubt that this provision was intended to apply to the case of a person leaving as his next of kin nephews or nieces, the children of different brothers or sisters, and that such nephews or nieces take in equal shares. Such is the natural and obvious construction of the statute. The policy of our law is that when heirs are in equal degree of consanguinity to the intestate, they inherit per capita, or in equal shares, but when they are in different degrees, those in the more remote degree inherit per stirpes, or such portion as their immediate ancestor would inherit if living. Knapp v. Windsor, 6 Cush. 156, 162. Chief Justice Shaw, in the case cited, says that “ the rule of representation applies only from necessity, or where there are lineal heirs in different degrees, as children and the children of a deceased child, or brothers and sisters and the children of a deceased brother or sister.”

The appellant argues that it is the intention of our statute that distribution shall be made under the fifth clause only when there is a failure of all persons previously named in the statute, including children of deceased brothers and sisters. We cannot adopt this construction. It seems to us against the natural meaning of the language, and against the general policy which pervades our system that the next of kin in equal degree shall inherit in equal shares.

We are therefore of opinion that the decree appealed from was correct. Decree affirmed.