Conant v. Kent

Gray, C. J. By the General Statutes, if a person died intestate, leaving no issue, and no father nor mother, his estate went in equal shares to his “ brothers and sisters, and to the children of any deceased brother or sister by'right of representation ; ” and “ if he leaves no issue, and no father, mother, brother nor sister, then to his next of kin in equal degree.” Gen. Sts. c. 91, § 1, cls. 3, 5; c. 94, § 16. Under those statutes, it was held that where an intestate left no issue, father nor mother, but left one sister, children of another sister, and children of deceased children of a third sister, these grand-nephews or grandnieces could not share in the distribution. Bigelow v. Morong, 103 Mass. 287. A statute passed in 1876, under which the present case arises, reenacted the first clause above quoted, with the substitution of the word “ issue ” for the word “ children; ” so that in a case like Bigelow v. Morong the grandchildren of a deceased sister would take a share of the estate. But the clause so altered applies only when the intestate leaves a surviving brother or sister; and the statute of 1876 reenacted in its very words the second clause above quoted. St. 1876, c. 220, § 1, els. 5, 6; § 4. The clear words of this clause require that, if the intestate leaves no issue nor parent, and no brother nor sister, his estate should go “ to his next of kin in equal degree.” The necessary consequence is that, when no brother nor sister of the intestate survives him, the estate goes to the children of deceased brothers or sisters as the next of kin of the intestate, to the exclusion of children of deceased nephews or nieces. The words of the statute being clear and unambiguous, it is not for the court to conjecture whether the distinction in the rights of grandchildren of a deceased brother or sister, depending upon the fact whether any brother or sister survived the intestate, was intentional or accidental; nor can the St. of 1880, e. 219, abolishing the distinction, and allowing the issue, in whatever degree, of every deceased brother or sister, to share by right of representation in all such cases, affect rights vested under the statute of 1876. Judgment affirmed.