Untitled Texas Attorney General Opinion

R-312

THEATTORNEYGENERAL OFTEXAS

Hon. George H. Sheppard Comptroller of Public Accounts Austin, Texas opinion No. v-174 Ben Proper distribution of intestate's estate under Dear Sir: submltted facts., ,You have rcquested,sn opinion from this De- partment as to the distribution thatshould be made in the administration of the estate of C. C. Mitchell, deceased, in view of the folloving facts~: C.'C. Mitchell, an only child, had never married. 'Be died intestate, leaving neither father nor mother, nor grandparents. this paternal grand- mother had tvo children by a second marriage. 'Both of these children are dead. One of them left nine children; the other, four. These thirteen "half" first c~ousinsare,intestate's only relatives on the paternal side. On the maternal side, twelve first cousins survfve intestate. Right descend from one matepnal'aunt; four, from anothert'and one, from a. third.

,An examination of the various Articles OS Title ~48, "Descent end Distributioa," R.O.S,, reveals, several provIsions that bear on a determination of the problem at.hand. Article 2570 provides the course and manner of descent of the property of an intestate uho leaves no husband or wife- The first three sections of Article,2570 presaribe the distribution to be made if the intestate is survived by children or'their descend- ants, or~by parents or one of them,,or by brothers or sidters or their descendants. Section 4 of Article 2570 is applicable to,the~facts of this case and reads 8s fol- laws: "If there be none.of the Hadred afore- said, then the inheritance shall,be divided into two moietiess ,one of which shall go to the pat,isrnaland the other to the~maternal kindred, in the following course8 To the

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grandfather and grandmother in equal por- tions, but, if only one of these be liv- ing, then the estate shell be dividied ln- to two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grsndmother. If there be no surviving grsndfsther or grand- mother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors sad their descendants. Act March 18, 1888, pa 129; P-D, 3419; G. L. vol. 3, pS 129; Act Jan. 18, 1840, p. 132; G.L. Vol. 3, p. 306," Article 2573 makes the folloving special provisions for kindred of hslf-bloods "In cases before mentioned, where the inheritance is directed to psss to the col- lateral kindred of the Intestate, if part of such collstereI be of the whole blood, snd the other part of the half blood only of the intestate, those of half blood shall inherit only half so much as those of the whole blood; but if all be of the hslf- blood they shall have whole portions. Acts 1848~ pe 129; P.D. 3424: G.L. Vol. 3, pa 129. Article 2577 is likewise determinative and reads as fol- lows : "Where the intestatess children, or brothers and sisters, uncles and aunts, or any other relations of the deceased standing in the first and same degree a- lone come into the psrtltion, they shall take per capita, namely: by persons, and, when e pert of them being dead and a part living, the descendants of those dead have right to partition, such descendants shsll inherit only such portion of said property as the parent through whom they inherit would be entitled to if alive. Acts 1887, p. 49; G.L. vol. 9, p. 847."

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None of the other provisions of Title 48 are relevant; therefore; a determiwtion of the proper distribution of the C. C. Mitchell eSt8te nust be mde from the a- bove quoted articles as construed by our courts. In 1878, in McKinneg v. Abbott, 49 Tex. 371, the Suureme Court of the8te of Teus construed whst wss then the fourth subdivision of Section 2 of the ‘act “To regulate the descent and distribution of intest8tes’ estates,” (Paschal’s Dig., Art. 3419.), now Section 4 of Article 2570, R.C.S. Some of the heirs in tH8t case were descendants of the patern gmndfather and grand- mother; the others were descendruts of the wterixal greet gmndfather and great gmndmothor. The court Held that the estate left by the intbstrte should be di- vided into two equsl moieties or portions, and one given to the descendants of the gmndfather rnd gmndmother on the father’s side and th8 oth8r portion given to the des- Cmd8nt8 of the great gmndyr8nta on the mother's aide. The court in reaching this conclusion PP8880R8d88.follava: ‘“The obscurity and uncertainty of thir subdivision of said section arise out of the fret that after the inheritance is directed to be divided into two aoleties, one to go to the paternal and the other to the m8tern81 kindmd of the intestate, the sbtute in th8t section makes no further refmence to the two estates thus created out of the inheritance, but proceeds to state how the estate, as if . there were but one, ah811 descend and be in- haritmd, concluding with the direction that It shall go to the “ne8remt lfneal’ancestors, or their descendsnts, or to such of the* 88 there be Dq “If this hsd been srid to be the courae of e8ch otaeof the two est8tes, -de by dirld- fng the inheritance into two noi8tie8, it would plain a8 to wh8t WI8 me8nt. Still, h8ve been lilore it is aore reason8ble that such vas its meaning, then that there should be no diriaion of the in- hirit8nue when the kindred h8pp8ned to be ne8rer on one side then on the other, which, it muat have been known, would very often h8ppen,” The court also analyzes the historical background of the legislrtlon and concludes :

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with the explanation thus furnished . e o there could be no doubt but that, in the contingency contemplated by this fourth subdivision, the moieties of the fn- heW.tance should go to the paternal and maternal .klndred respectfvely,‘although the kindred of one side might be more re- mo,tethan those upon the other, any such existed to take the ed to each Sfde.“mphasfs added).

In Witherspoon v. Jernfgan, 76 S .W. 445, the Supreme Court again consfdered thfs same provision which at ‘that time was subdfvision 4 of Artfcle 1688, Rev. St. 1895. The court cited the bkfinneg cask with approval and held that under this subdivision an estate is prop- erly divided Into two equal parts, “each of whfch for murposes of distrfbutfon became a separate estate, one to go to the maternaT and the other to the paternal kindred ” D [%phasis added) The provisions of Section 4 ‘ofArticle 2570, R.C.S. have not been changed since these decisions were rendered; therefore, it is mandatory thaf the property first be divided into two equal parts, one to go to the relatives on the paternal sfde, the other to the maternal kIndred o The genera1 statutory rules of distribution are then avDlicable to each of the two estates so created. on v, JernPgan, supra; Peters v. Clancy, Cfv. .w. 2a 937. Article 2577 (previously quoted) defines the class of persons who take a per capita share in the dis- tributfon of an lntestatens property The court in the Wthersooon ease. sunra . vofnts out that ,a literal con- structfbn of the’phrgse’“‘ or”any other’reletfont of the deceased standing in the added) O This result fs a k%dl “or” for the word “and”” The phrase then reads “in the first or same de Verlous authorfties are cl- sustain thfs met of construction. and the court PFnds further suppdpt for the result by tracing the history of previous legfslative enactmentsO See also Peters v.. C!~L,;~~ra.~B~;o~; paternal kindred are al1 of the on com'lnginto partition they take a per capita share of the “paternal estate.” Article 2573 (prevfous ly quoted ), dealing with the shares to be accorded those of half -bloodB in no way impedes this result;

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for as to the "paternal estate" all are "of half-blood and they shall have whole portions". Each paternal half-cousin is 'thus entitled to l/13 of the,eatate al- loted to the paternal kindred or l/26of the original estste, The maternal kindred are lfkewise of the same degree. By vlrtue of Article 2577, they will take a per capita share on coming into the partition. The share to which each cousin is entitled is l/12 of the estate al- lotted to the maternal kindred or l/24 of the original estate.

SUMMARY Where the nearest surviving kindred of an intestate are the descendent8 of the ma- ternal and the paternal grandparents, the estete of the intestate must be divided into two equal parts, one of which goes to the pe- ternal kindred and the other to the maternal kindred. Section 4 of Article 2570. R.O.S.: McKinneF v. v. of distribution are then applicable to each of the two estates so created. Paternal half- cousire, being of the same degree, and there being no otherskindred ou the peternal sfde, take an equal per capita shsre in the estate allotted to paternal kindred. ArtLcle 2577, aupra.; 2573 R.C.S. inn ail of the same degree take equel shares Gf the estste allotted to the wternal kindred. Yours very truly ATTORPIEYGFEERAL OF TRXAS

ATTORNFlY GEEERAL Mrs. Mariett8 MP/lh