Estes v. Nicholson

Taylor, C. J.: No complaint is made of the sale of the lands involved for partition, or of the confirmation thereof by the court upon the terms and at the price for which they were sold. All parties seem to be satisfied that the sale for partition as made and confirmed shall stand undisturbed. The sole contention here is,, that the court below erred in its construction of our statute of descents, in adjudging to the complainant Annie Estes only a one-fifth interest in the lands and its proceeds that belonged to the intestate estate, she claiming that, as she is the sole surviving heir at law of the intestate on the paternal side, she inherits and is entitled to one moiety, or one-half, of his estate in Florida under its statute of descents. The bill alleges, and the answer admits, that Thomas M. White, Jr., died about March 20th, 1898, intestate, owning the lands described in the bill located in Florida. That at his death he left surviving him neither wife, child, brother, sister, father or mother, nor any descendant thereof. That the grandfather of said decedent was Thomas M. White, Sr., who died about the year 1880, prior to the decease of his grandson, the said Thomas M., Jr. That the said Thomas M. White, Sr., at the time of the death of said Thomas M., Jr., had no surviving children, nor any descend — 766 — ants thereof, except the complainant Annie Estes* who is a daughter of said Thomas M. White, Sr., and sister of the half-blood to the father of the said Thomas-M., Jr. That the defendant Charlotte II. Nicholson is the grandmother of the said intestate Thomas M., Jr., and that said Charlotte H. Nicholson, at the time-of the death of said intestate, had no children, nor-descendant-s of any children, surviving, except the-defendant Josie M. Winter, who is a daughter of said Charlotte H. Nicholson, and a sister of the whole-blood to the mother of said Thomas M., Jr. Section 1820 of our Revised Statutes provides as follows: “Whenever any person having title to real estate of inheritance shall die intestate as to such estaté, it shall descend in parcenary to the male and female kindred in the following course, that is to say:: To the children or their descendants and the husband, if the decedent be a married woman and the husband survive her. If there be no children or their descendants, and the decedent be a married woman and: her husband survive her, all the property, real and personal, shall go to the husband; and if there be no-children or their descendants, and the decedent be a married man and his wife survive him, all his property, real and personal, shall go to the wife. If there be no children and no husband or wife, then to-the father. If there be no father, then to the mother, brothers and sisters and their descendants, or such of them as there may be. If there be no brother nor sister, nor their descendants, the inheritance shall be-divided into moieties, one of which shall go to the-paternal, and the other to the maternal kindred in the following course, viz: First to the grandfather. If there be no grandfather, then to the grandmother* — 767 — uncles and aunts on the same side or their descendants^ or such of them as there be. If there be no grandmother, uncle nor aunt, nor their descendants, then to» the great-grandfathers, or great-grandfather, if there be but one. If there be no great-grandfather, then to* the great-grandmothers, or great-grandmother, if there be but one, and the brothers and sisters of the grandfathers and grandmothers and their descendants, or such of them as there be. And so in other cases without end, passing to the nearest lineal male ancestors, and for the want of them to the lineal female ancestors, in the same degree and the descendants of such male and female ancestors, or to such of them as there may be.” Section 1823 of the Revised Statutes, upon which the court below evidently predicated its decree of adjustment between the parties, provides as follows; ‘ ‘In the cases before mentioned, where the inheritance is directed to pass to the ascending and collateral kindred of the intestate, if part of such collaterals be of the whole blood to the intestate, and other part of the half-blood only, those of the half-blood shall inherit only half as much as those of the whole blood, hut if all be of the half-blood, they shall have whole portions, only giving to the ascendants (if any there be double portions.” The court below erred in its construction of this statute. The provision therein, to the effect that if there be neither husband or wife, nor children or their descendants, nor father or mother, nor brother or sister, or their descendants, the inheritance shall be divided into moieties, one of which shall go to the paternal, and the other to the maternal kindred, is — 768 — imperative, and creates, under the circumstances intended to be met thereby, practically two distinct estates, the one falling to the paternal kindred, the ■other to the maternal; and the directions following ithis provision are designed to give the course that ■each of the two moieties shall separately take after the -division into moieties. The inheritance, after onee being divided into moieties can not be again lunited, and -descend in one line until there ceases to Ebe a representative of the other line. So long as there is any kindred, however remote, on the one side or the ■other, ¡he, she or they take one of the moieties to the ■exelusion of the kindred on the other side, who are ■entitled to the other. Cozzens v. Joslin, 1 R. I. 122; Jones’ Heirs v. Barnett’s Heirs, 30 Tex. 637. Brown v. Tuberville, 2 Call (Va.), 329. The provisions in section 1823 Rev. Stats., quoted ••above, directing that collateral kindred of the half-Mood -should inherit only half as much as collaterals ■of the whole blood, was not designed to do away with the provision in section 1820, also quoted, that casts the estate by moielies upon the paternal and maternal Mndred-; nor does it have the effect, where the collateral kindred on the one side are of the whole blood, and those on the other side are of the half-blood, to re-unite the moieties of the estate so as to give out of the whole thereof double portions to the kindred of the whole blood. The real purpose of the said section 1823 is not to qualify, limit or disturb the provisions ■of the previous section 1820, dividing the estate into moieties and easting them, as two separate and distinct «estates, respectively upon the paternal and maternal ¡kindred, but its provisions, when applied to cases where a division of the estate into moieties has taken — 769 — place, are intended to deal with the two moieties as being still two separate and distinct estates, and, in such cases, amount simply to additional directions as to the course that each of said separate moieties shall respectively take, when those entitled to share in the one or the other thereof are found to be kindred only of the half-blood. When the division by the law into moieties takes place the casting by such law of the one moiety upon the paternal kindred excludes all •of the maternal kindred from any share or interest therein, until, and only until, it is found that there is no kindred, however remote, on the paternal side to inherit such moiety; and so, vice versa, with the ■moiety casr by the law upon the kindred on the maternal side. The fact that the kindred on the one ;side are relatives of the intestate only of the half-blood, does not give to kindred on rhe other side of the whole blood any right to share in the distinctive moiety that the law casts upon the parental stock to which such half-bloods belong. in the case at bar the complainant Annie Estes, being the only surviving relative of the intestate in the line of descent marked out by the law on the paternal side, is entitled to that moiety, or one-half., of all the ■estate in controversy that the law cast upon the paternal kindred, to the exclusion of all of the intestate’s maternal relatives, and this notwithstanding the fact that she is the paternal aunt only of the •half-blood to the intestate. The defendants Charlotte EL Nicholson and Josie M. Winter, being relatives of the intestate only through his mother, and being the only kindred in the line of descent as mapped out by the law to inherit the moiety cast thereby upon the maternal kindred, take the whole of — 770 — such moiety; but no more. In the division oí the one-moiety between the defendants Charlotte H. Nicholson and Josie M. Winter, they take equally, or that which is equivalent to one-forth each of the whole-estate. The provision in section 1823 of the Revised Statutes, giving to ascendants in the line of inheritance by collateral kindred double portions, applies, only to cases where all of the inheritors on the same-side are of the half-blood only. Charlotte H. Nicholson, being the maternal grandmother of the intestate, takes an equal portion with her daughter Josie-M. Winter, who is the maternal aunt of the intestate, under the provisions of section 1820 of the Revised Statutes. The decree of the court below rendered on the 30th day of September, 1893, from which the appeal No. 1 was taken, and the decree rendered on July 9th, 1894, from which the appeal No. 2 was taken, are hereby reversed in so far as they adjudge to the complainant Annie Estes only a one-fifth interest in the whole of said estate, and to the two defendants Charlotte H. Nicholson, and Josie M. Winter two-fifths interest each in the whole of said estate, with directions to enter-decrees in their stead adjuding to the complainant Annie Estes one-half of the whole estate involved, and to the defendants Charlotte II. Nicholson and Josie-M. Winter one-fourth each of the whole of said estate. In all other respects the decrees appealed from and all other orders and decrees in the cause are hereby affirmed. The appellees are adjudged to pay the costs, of these two appeals.