Mace v. Cushman

The opinion of the Court was drawn up by Hathaway, J. An appeal from a decree of the judge of probate, disallowing the claim of the appellant to the personal estate, which was of his wife Betsey Mace, who deceased intestate, Sept. 19, 1855, never having had a child, but leaving brothers and sisters alive. Chapter 93 of R. S. of 1841, entitled, “ of title by descent,” after having designated to whom, and in what proportions the real estate of persons deceased intestate, should descend, enacted in the fifteenth section, that, after the payment of the debts of the intestate, and the charges of his funeral, and settlement of his estate out of the personal estate, “ the residue shall be distributed to the same persons in the same proportions, to whom the real estate should descend, subject to sundry provisions specified in subsequent sections, one of which, section 16, is, “if the intestate were a married woman, the husband shall be entitled to the whole of said residue.” The question presented is, substantially, whether or not this section of the statute was repealed by the third section of the statute of 1848, c. 73, entitled “ An Act in addition to an Act to secure to married women their rights of property,” which provided that, “ when any married woman shall die intestate, seized or possessed of any property, real or personal, in her own name, exempt from the debts or contracts of her husband, the same shall descend or be distributed to her heirs.” That section was not a repeal of the former Act, unless by implication. A construction which repeals a former statute, by implication, is not to be favored in any case. Statutes are not considered to be repealed by implication, unless the repugnancy between the new provisions and a former statute be plain and unavoidable. 1 Kent’s Com. 524, (9th ed.,) note C.; Com. v. Herrick, 6 Cush. 465. Technically, in the common law use of terms, in relation to [261] the estates of deceased persons, and those to whom such estates shall descend and be distributed, heirs are such, by kindred blood, they inherit real estate only, and descent is hereditary succession. But the descent and distribution of property, in this State, is regulated by statutes. There may be, and are persons who are made heirs by statute, who would not be heirs at common law. Hence, it is not remarkable that technical words, upon the subject of inheritance, should be occasionally used in statutes with a meaning not technically accurate, according to the rules of the common law. The title of R. S. of 1841, c. 93, is “of title by descent,” and its index to section 15, is, “how personal estate shall descend,” and, yet, the subject of the statute is of title by decent and distribution, and, technically, title to personal estate does not come by descent, and, although the title of an Act and its preamble are, strictly speaking, no parts of the statute, yet, they may sometimes aid in the construction of it, and, to that end, in ascertaining the meaning in which technical words therein were used. But we can derive no such aid from the title of the statute of 1848, c. 73, for its title does not indicate that the statute embraces any such provision as is contained in the third section of the Act. Legislators, in the statutes which they enact, frequently use technical words in their common and popular meaning. In the common use of language, the children of a deceased intestate leaving personal property only, would be called his heirs, and such use of the term would be justified by the definitions of the word heir, by lexicographers, but, technically, they would not take the estate of the deceased, as heirs, they would take it as distributees, according to the rules established by the existing laws. In the construction of statutes the intention of the lawgiver, when accurately ascertained, will prevail over the literal use of terms, and a statute is not to be construed according to technical rules, unless such be the apparent meaning of the Legislature. The general system of legislation upon the subject matter, and other statutes, in pari materia, may be con [262] sidered, and when a statute is made in addition to another statute, upon the same subject, without repealing any part of it, the provisions of both must be construed together. 1 Kent’s Com., (9th ed.,) 516-521, and notes; Whitney v. Whitney, 14 Mass. 92; Holbrook v. Holbrook, 1 Pick. 248; Pease v. Whitney, 5 Mass. 380. The legislation upon this subject, before and after the statutes of 1848, does not favor the conclusion that the Legislature intended, by the third section of the Act of 1848, to repeal any part of the law then in force, concerning the descent and distribution of the estates of persons deceased intestate. By the word heirs, as used in that section, was evidently intended those persons who were entitled to the property of the deceased, according to the laws then in force. The same word with that meaning was adopted in the last revision of the statutes, in 1857, in which, c. 61, § 5, “when a married woman dies intestate, her property descends to her heirs,” and in c. 75, § 9, if the intestate “leaves a widow and issue, the widow takes one-third, if no issue, one-half, and if no kindred, the whole; and the widower shall have the same share in the wife’s estate.” In these two contemporaneous Acts, it is certain that the word heirs, as used in c. 61, § 5, includes the “widower,” named in c. 75, § 9, and there is no reason, to doubt, that the same word was used in the same sense in the statute of 1848, c. 73, § 3. Nor is this any unusual meaning to attach to the word heirs. It has been often held that, to carry into effect the intentions of a testator, the word heirs may be construed to mean those entitled under statutes of distribution. Morton v. Barrett, 22 Maine, 264. The fact that “ the word heirs in the plural form” only, was used in the statute of 1848, is immaterial. There is no doubt that the estate, which was of a deceased person, and which, by law, goes' to his heirs, if he leave but one heir, goes to that one; and, besides, by R. S. of 1841, concerning “the construction of statutes,” “ any word importing the plural number only, may be applied and confined to the singular number.” [263] The appellant is entitled to the whole of the residue of the personal estate, which was of his deceased wife, according to the provisions of the R. S. of 1841, c. 93, § § 15 and 16, and the case must be remanded to the Probate Court for further proceedings. Remanded to the Probate Court. Tenney, C. J., May, Goodenow, and Davis, J. J., concurred.