McMenomy v. McMenomy

Dillon,'J.— 1. descent: of statute. It will be borne in mind that the plaintiff and the said Jeremiah had but one child ever born to them, and that this child-died without issue many years ])r%or to the death of his father. In the present proceeding, the plaintiff does not claim as widow, but, on the-contrary, alleges, that she was divorced, avin [150] oulo matrimonii, from the intestate, some years before his death. Nor does she claim as his heir. But she claims by right of representation through her deceased son, John B. McMenomy. This right she bases, upon the following provisions of the Statute: Sec. 2436 (1408). Subject to the rights and charges hereinbefore contemplated, the remaining estate of which the decedent died seized shall, in the absence of other arrangements by will, descend in equal shares to his children. Sec. 2437 (1409). If any of his children be dead, the heirs of such child shall inherit his share in accordance with the rules herein prescribed, in the same manner as though such child had outlived his parent. Sec. 2495. If ,the intestate leave no issue, the one-half of his estate shall go to his parents and the other half to his wife; if he leave no wife, the portion which would have gone to her shall go to his parents. Sec. 2496. If one of the parents be dead, the portion, which would have'gone to such deceased parent shall go to the surviving parent, including the portion which would have belonged to the intestate’s wife had she been living. The plaintiff claims that, under section 2437, above quoted, she is the heir of her deceased child, and that this child, though he died before his father, shall, nevertheless, inherit the same as though it had outlived him. In our judgment such is not the meaning of the statute. It was the purpose of section 2436 to discard the unjust and aristocratic rule of primogeniture, and to establish in its stead the law of partible inheritance, placing each and every child, male and female alike, upon an equal footing. Carrying out the same policy, the next section (2437), being that upon which the plaintiff mainly relies, provides that, if any one of the intestate’s children be [151] dead, the heirs of such child shall represent it and take in the same manner as though such child had outlived the parents. It allows, for example, grandchildren to take the place of the child of the intestate. This is the prevailing law in this country, and it is consonant with our ideas of justice, and responsive to the feelings and affections of the human heart. 2. — heir, It is true that the word “ heir ” is not technically limited to children; still we do not think that the legislature intended by its use in the section under consideration, to embrace such a case as that of the present plaintiff. Such a construction would be attended with consequences, as it seems to us, equally startling and unjust. Let us illustrate. Suppose the plaintiff and the said Jeremiah had ten children, instead of one, and that nine of them had died during his life-time. If the theory now propounded by the plaintiff’ be correct, she, as heir of the nine, would take nine-tenths of the inheritance, and the remaining child one-tenth only, and that too, subject (if there had been no divorce), to her dower and homestead right. If the plaintiff had remained the wife of the decedent, she would, there being no issue alive at his death, have inherited one half of his estate as provided in section 2195 of the Revision. If she was divorced by a valid decree a vinculo matrimonii, she could not claim any part of his estate as widow or heir; and this would go, he having died without issue, to his parents, and, through them, to their heirs, as provided by the statute. It is stated by counsel in argument, that the allegation in the petition, that the divorce was from “ the bonds of matrimony,” is based upon a mistake of fact, and that, in truth, the divorce was only from bed and board. If this be so, this proceeding will not bar another to be commenced by the plaintiff claiming as widow or heir of [152] her deceased husband. Without prejudice to any such action, the judgment of the District Court,-in the present cause, is Affirmed. Cole, J., having been detained from court by sickness in his family, did not hear the argument in this case, and therefore took no part in its determination.