Grantham v. Statham

Truly, J., delivered the opinion of the court. Section 1543 of the code of 1892 establishes a perfectly plain rule of inheritance. By it the right of representation is accorded, among collaterals, only to the descendants of brothers and sisters of the intestate. But among more remote relatives the closest in degree take, as a class, per capita, to the exclusion of all others. The rule is accurately stated in 24 Am. & Eng. Enc. of Law (1st ed.), p. 384, as follows: “It is only in a very few states that the right of representation does not seem to be restricted, but to extend to descendants of collateral relatives generally. In some states, by express provisions to that effect, no representation is admitted among collaterals after brothers’ and sisters’ children; and in other states this right is restricted to the decendants of brothers and sisters. The effect of .these provisions is to limit or qualify the right of ¡representation among collaterals, so that, in the case of succession by relatives farther removed from the intestate than those of the cases excepted, they can take only in their right as next of kin, per cap-ita. * * * So, when one dies intestate, leaving uncles and aunts and the children of other deceased uncles and aunts, the former take to the exclusion of the latter.” See cases from many states, there cited, which fully support the text. [179] The right of beirsbip is established by the circumstances existent at the date of the intestate’s death. In the case at bar, at the date of the intestate Green’s death, he left, surviving, one uncle, two aunts, and several cousins, descendants of aunts who had died in the intestate’s lifetime. Under this state of facts, the surviving aunts and uncles took to the exclusion of his cousins. The complainants were excluded by this law. The decree appealed from is affirmed.