Hoffman v. Watson

Boyd, C. J., delivered the opinion of the Court. Inasmuch as the members of the Court who sat at the original hearing of this case differed as to the construction of the statutes involved, a re-argument was ordered before a frill Bench which haS been heard. James S. Clark died intestate, unmarried and without any relatives nearer than the appellants, who were his first cousins, and the appellees, who were his grandnieces. He left real estate which he had acquired by purchase, and personal property.

The question to be determined is whether the cousins or the grandnieces are entitled to the intestate’s property, and, as he left both realty and personalty, it will be necessary to consider the two classes of property separately. 1. We will first consider the realty. Section 1 of Article 46 of the Code provides that: “If any person seized of an estate in lands * * * shall die intestate thereof, such lands, tenements or hereditaments shall descend in fee simple to the kindred, male and female, of such person, in the following order, to wit:” After first providing for the descent to children and their descendants, the statute states the order of succession when there is no child or descendant, in case the estate descended to the decedent on the part of the father, and also when it descended on the part of the mother, and then section 19 provides as follows: “If the estate shall be vested in the intestate by purchase * * * and there be no child or descendant of such intestate, then the estate shall descend to the brothers and sisters of such intestate of the whole' blood, and their descendants in equal degree, equally.” Section 20 provides for its descent to the brothers and sisters of the half blood, and their descendants in equal degree, if there ⁵⁴⁵ be none of the whole blood; and section 21 is as follows: “If no brother or sister of the whole or half blood, or any descendant from said brother or sister, then to the father, and if no father living, then to the mother, and if no mother living, then to the grandfather on the part of the father, and if no such grandfather living, then to the descendants of such grandfather in equal degree, equally.” It requires no argument to show, and it is not, and cannot be denied that if the appellants take at all, it must be under section 21, and likewise the appellees must take, if at all. under section 19. If the statute stopped at section 21 there could be no possible doubt that the appellees would take to the exclusion of the appellants, for they are descendants of a sister of the intestate—being granddaughters of his sister, Alary F., who married John Watson, and as the appellants can only claim under section 21, they are by the very language of the statute under which they claim only entitled “if no brother or sister of the whole or half blood, or any descendant from such brother or sister” be living.

Even then they must show that there is no father, mother or grandfather on the part of the father living before they can have any standing, and then only as “the descendants of such grandfather.” It is, so to speak, a condition precedent to the right of cousins to take by descent under the statute, to prove that there was no brother, sister, descendant from such brother or sister, father, mother or grandfather on the part of the fattier of the intestate living, and hence as the appellees are descendants from a sister of the intestate and are embraced in section 19, the descent must stop there, and cannot get to the appellants under section 21, unless there be some other part of the statute which requires an interpretation that excludes the appellees from the term “descendants,” as used in section 19 and in what we have called the “condition precedent” in section 21. As a genera] rule the word “descendants” is not limited to “children.” In Levering v. Orrick, 97 Md. 145 , Judge Pjgakce quoted from 2 Williams on Executors, 976, where ⁵⁴⁶ under the term “descendants” it is said:' “Under this description is comprised every individual proceeding from the '■stock or 'family referred to by the testator;” and from 2 Jarman on Wills, 632: “Descendants are issue of every degree.” But in Maxwell v. Seney’s Lessee, 5 H. & J. 23 , our predecessors, through- Judge Buchastae-, held that under the second section of the Act of 1786, ch. 45 (now sec. 19 of ’Art. 46), as interpreted by the fourth section (which is now sec. 27, without the proviso) : “if one of said brothers or sisters die,'leaving a grandchild, or any the most remote descendant, as his or her heir at law, ’such child 'or descendant is entitled to the same interest in the estate as the ancestor ■ would have been if living; and takes the same per stirpes and not per capita” (quoting from the syllabus). In that case grandnephews and grandnieces were distinctly held to be “descendants,” and a great-grandnephew was permitted by representation, under the statute as it then stood, to share in his father’s interest But in 1820 our statute of descents was amended, and it is claimed by the appellants- that the part of that Act which is now the proviso at the end of section 27 of Article 46, so ■changed the law of this State as to give first cousins priority over grandnieces. That section is as follows: “If in the descendingor collateral line, any father or mother' shall be dead; the child or children of such father or mother shall by representation be" considered in the same degree as the said father or mother would have been, if living, and shall' have the 'same share of the' estate' as - the father or mother, -if living,'would have been entitled, and no more; and in such case, when there are more children than one, the share aforesaid shall be equally divided among such children; provided, that there be no representation admitted, -among collaterals after brothers’ and sisters’ children.” The proviso in italics was added by the Act of 1820 to what was the fourth section of'the Act of 1786; In Maxwell v. Beney, supra, it was-said, in speaking of the fourth section, “the office of which'is to ■ascertain who shall be considered as standing in the"sanie ⁵⁴⁷ degree, and the proportions to which, they shall be respectively entitledThat was in answer to the contention that in the collateral line “only those in equal degree, and none more remote than the children of. brothers and sisters can take, and that they must take per capita, and not per stirpes ” which contention the Court refused to sustain.

The fallacy in the argument of the appellants consists in confusing the term “representation” with that of “descent,” or “inheritance.” If the appellees sought “by representation to be considered in the same degree” as their father, who was a son of the sister of the intestate, so as to participate in the inheritance with other nephews and nieces, an altogether different question would have arisen, but they claim as descendants of a sister of the intestate—there being no sister or brother of the intestate living and no descendants of any such brother or sister who are more nearly related to such brother or sister than they are. It can scarcely be contended that if the appellants were not living, the appellees would not have inherited this property, and they would have inherited it under section 19. That being conceded, as it certainly must be, upon what possible ground can it be said that the appellants, who must take, if at all, under section 21, can exclude the appellees, when the latter section expressly makes their right to inherit subordinate to the rights of those embraced in section 19 ? That of itself ought to be a complete answer to the appellants’ claim.

It is perfectly certain that if the appellees would not have taken under the conditions just stated, the appellants can have no standing in Court. In Porter v. Askew, 11 G. & J. 346 , it was held that this proviso, in what is now section 27, limited representation among collaterals to the children of broihers and sisters of the intestate, and that was repeated in McComas v. Amos, 29 Md. 132 . In Porter v. Askew , it was applied to a case where there were an aunt and first cousins of the intestate. The Court held that the first cousins, who were children of two uncles and'another aunt of the intestate who had pre-deceased him, could not take by repre ⁵⁴⁸ senlation and hence Mary Askew, an aunt who survived the intestate, took the whole estate.

Now if the proviso in section 27 applies to first cousins as well as to grandnieces, as has been distinctly decided, would it not prevent the appellants from inheriting this estate, if it would the appellees ? Undoubtedly it would, and therefore it would seem, clear that if the appellees cannot inherit under section 19 by reason of the proviso in section 27, the appellants could not inherit under section 21 by reason of the same proviso, even if the appellees were not in existence, and a fortiori cannot so inherit as they are living. We do not mean to intimate that the proviso has such effect, but if it had as to the appellees, it would also have as to the appellants. There is no escape from that conclusion.

We repeat that the appellants can only inherit, if at all,, by virtue of section 21. It is not a question as to whether first cousins or grandnieces would take at common law, but the question is which of those two classes take under our Statute. In 27 Am. & Eng. Ency. of Law, 316, that proposition, which ought not to require authority to sustain it, is, thus stated: “The State statutes generally prescribe the order in which the near relatives of the decedent shall take his property, by a. designation of relationship instead of by computation of the degrees of kinship.

Most of the statutes, fix the order of succession by children and their descendants, the widow and the husband, the father and mother, and the-brothers and sisters, noviinatim. Consequently, it is only where the decedent’s property goes to kindred outside this-series of especially designated relatives, that the method adopted for reckoning degrees of kinship is resorted to in-determining the order of succession.” As no one can inherit under section 21 until the classes under sections 19 and 20' are exhausted, and there are those living who can inherit under section 19, we do not understand how it can be said that those embraced in section 21 can displace them. Such a conclusion would not only be contrary to the ordinary rules-of construction, but would be in the very teeth of the statute.. ⁵⁴⁹ The appellees do not aslc that they “by representation be considered in the same degree” as their father would have been, if living, to use the language of section 27, but they ask, as descendants of the only brother or sister of the intestate who left descendants, that they be given what section 19 says shall, under such conditions as exist, be their property. They are such “descendants,” and, as they are living’, they take before those claiming under section 21 which in terms only allows them to take “if no brother or sister of the whole or half blood, or any descendants from such brother or sister,” etc., be living.

Taking “by representation” is an altogether different thing from taking by inheritance. The former only applies when a party seeks to be considered in the same degree as a deceased father or mother would have been in, if living. Section 27 does not prohibit grandnephews and grandnieces from inheriting’. The construction contended for by the appellants would in effect limit the use of the word “descendants” to that of “children”—so that no one beyond children of a brother or sister of an intestate could inherit.

If the Legislature had intended the proviso in section 27 to have such effect, it could have much more easily have said so by using the word “children” in section 19. The Act of 1820 did not attempt to amend section 19, but section 27, and only amended that by limiting the right of representation to brothers’ and sisters’ children. That limitation necessarily implied that it was only in cases where there were brothers and sisters or nephews and nieces because, unless that be so, the proviso was absolutely useless. The only occasion for grandnephews by representation being considered in the same degree as their father or mother would be to enable them to take part in the distribution with those of the same degree as their father or mother.

That the Act of 1820 prohibited, but if the grandnieces are the nearest descendants from a brother or sister of the intestate they are not dependent upon representation, but upon the descent which the law has cast upon them as the nearest descendants. ⁵⁵⁰ The',appellants contend that McComas v. Amos, 29 Md. 132 , .has determined the qp.es¡ion in their favor, bnt we cannot agree with them in that contention. That was a controversy between nephews and nieces on the one hand and grandnephews and grandnieces on the other. Under section 27 the latter, in such case, are undoubtedly excluded. The reason for it is perfectly clear, namely, because nephews and nieces are more closely related than grandnephews and grandnieces, and both are included in section 19, and those in that section most closely related to the intestate take to the exclusion of the others, excepting in so far as section 27 enables them to take by representation, but there is nothing in any part of the statute which can be construed to mean that any included in section 19 are to be subordinated to those in section 21.

Judge Alvey said on this branch of the case: “As to the right of the grandnephews and grandnieces to share in the proceeds of the sale of the intestate’s real estate, that depends upon the true construction of this restrictive proviso, attached to the twenty-seventh section of the statute just quoted. * * *■ By all the decisions, our own, as well as those made in the English Courts, brothers and sisters referred to in the proviso have been construed to mean brothers and sisters of the intestate, and that representation is not admitted when the distribution happens to fall. among brothers and sisters who are remotely related to the intestate. Porter v. Askew , 11 Gill & J. 346. And although lineal descendants ad infinitum may share in the inheritance of an intestate’s real estate, yet upon the received construction of this proviso, as among collateral descendants, except only the instance of the intestate’s brothers’ and sisters’ children, proximity of blood alone gives title to it. And in this case, there Toeing those in existence at the death of the intestate of greater degree of proximity of blood to him, it follows, therefore, that the grandnephews and grandnieces who made claim in the Court below have no right to share in the inheritance.” We do not at all question that statement of the learned ⁵⁵¹ Judge, but cannot, as the appellants do, apply the language used by him to a state of facts wholly different from those he was considering and passing upon.

In that case, as we hare seen, the Court was determining the respective rights of