McComas v. Amos

*Alvey, J., delivered the opinion of the court. The deceased, the distribution of whose estate is the subject ¹²⁹ of controversy in this case, died in the City of Baltimore, in the year 1866,, intestate, without wife, and leaving no child or descendant, father or mother, brother or sister surviving him ; but leaving several nephews and nieces, the children of deceased brothers and sisters, and also several grand-neph'ews and grand-nieces, whose parents had died in the lifetime of the intestate. After administration had, and the personal estate of the deceased was ready for distribution among those entitled, questions arose, in the Orphans’ Court of Baltimore City, as to whom, and in what manner, such distribution should be made. The Orphans’ Court, upon hearing the respective parties in support of their claims, ordered that the estate be distributed to the nephews and nieces of the intestate, excluding the grandnephews and grand-nieces ; and that such distribution be made amongst the parties per capita, and not’ per stirpes.

And from this order, some of the nephews and nieces, feeling themselves aggrieved by this mode of distribution, have taken this appeal. And the record presents two questions to be deter.mined by this court : 1st. Whether the grand-nephews and grand-nieces are entitled to share in the distribution ; and if not, 2nd. Whether the distribution among the nephews and nieces should be per capita or per stirpes.

These questions depend for their correct determination upon the construction of those sections of the 93d Article of the Code of Public General Laws, that relate to, and direct the manner of distribution of an intestate’s personal estate among his collateral relations. And first, as to the right of the grand-nephews and grandnieces to share in the distribution. The only provision in the Article of the Code just referred to, upon which their claim could be founded, is in sec. 131, which declares *that “ after children, descendants, father, mother, brothers and sisters of the deceased, and their descendants, all collateral relations in equal degree shall take, and no representation amongst such collaterals shall be allowed.” And to allow them to share in the distribution when there are those, as in this case, of a nearer degree of relationship to the intestate, it must be supposed that they ’ are embraced by the word “ descendants “ ¹³⁰ used in this section in relation to brothers and sisters, and that they are in the category of those who take by representation the portion that their deceased parents would have been entitled to if living. And this supposition is certainly plausible, and derives considerable support from the ordinary meaning of the word “ descendants,” and the strong implication from the classification made by this section, of those who can take by representation, and those who can only take per capita.

But such is not the judicial construction heretofore adopted of this provision of the statute. The word “ descendants,” as connected with brothers and sisters of the intestate, in this section, has been construed to mean children of such brothers and sisters. And by thus restricting the word “ descendants,” and taking it as synonymous with children of brothers and sisters, secs. 129 and J31, are made to harmonize ; and, with such construction, no representation is admitted among col-laterals after brothers and sisters’ children. Such we understand to be expressly decided by Robins v. State, 1 H. & G. 476 , note; and Duvall v. Harwood, 1 H. & G. 474 . it necessarily follows, therefore, that these grand-nephews and grandnieces are not entitled to share in the distribution, and that the Orphans’ Court was right in excluding them.

Next, as to the mode of distribution. This is a part of the case that has been most extensively argued, and about which it was supposed there exists the greatest difficulty. And certainly, great diligence has been displayed by the respective counsel, in bringing to the view of the court all the authorities supposed to bear upon the question, and they were ex*pounded and applied with rare skill and ability. But we think, in deciding this question, but little aid can be derived from adjudged cases on questions of distribution, arising elsewhere than in our own courts.

The English statute of distribution of 22 and 23 Car. .11. ch. xo, upon the construction of which most of the cases cited have occurred, is not in force here, and by the Act of 1798, ch. 101, since incorporated into our Code, the