Opinion
(Decided 27 February, 1900.)
Deceased Collateral Relatives — Heirs — Right of Representation — Third and Fourth Rules of Descent, the Code, Section 1281.
The heirs of deceased collateral relatives represent their ancestors, and take what they, if living, would have taken.
SPECIAL PROCEEDINGS for partition, transferred from the clerk and heard before Bowman, J., at Fall Term, 1899, of EDGECOMBE.
(73) Defendants excepted and appealed.
Day Bell and Alexander Stronach for appellants.
John L. Bridgers for appellees.
This was a proceeding commenced for partition of land and heard upon facts agreed to by the parties. Upon the argument it was agreed that Sarah Narcissa Bradley was the propositus, and that all the parties, plaintiffs and defendants, were of the blood of the first purchaser, and that the said Sarah Narcissa died intestate and without lineal descendants in 1894. It was also agreed (as the agreed case shows) that S. B. Bradley, J. R. Bradley and Ellen Robertson are brothers and sister of Sarah Narcissa Bradley, and that the plaintiffs Sallie Neville, E. C. Neville, Augustus Neville, Ida J. Neville, E. K. Neville, Leon Neville, and F. L. Neville are the children of Emily Neville, a sister of Sarah Narcissa, and that she died in June, 1891, and that W. B. Howerton and Bettie S. Draper are the children of Henrietta Howerton, a half sister of Sarah Narcissa, who died 28 September, 1869.
That under the rules of our law of descent, Henrietta Howerton, though a half sister of Sarah Narcissa, would have inherited from the propositus, Sarah Narcissa, if she had been living at the death of the said Sarah Narcissa. And as she would have inherited, her children will inherit, if nephews and nieces inherit where there are brothers and sisters living at the death of the propositus, or ancestor last seized. (74)
It is contended by the defendants that only the "next" collateral relations inherit, and defendants say that they are in equal degree, and are the next or nearest collateral relations of Sarah Narcissa, and that as she died without leaving lineal descendant, that they are entitled to inherit the estate of the said Sarah, to the exclusion of the plaintiffs, who are nephews and nieces, and not of the next of kin.
But it will be observed that the fourth rule of descent is made subject to the provisions of the two preceding rules, and the third rule provides "That lineal descendants of a person deceased shall represent their ancestor, and stand in the same place as the person himself would have done, had he been living."
Then it would seem that the plaintiffs stand in the same places that their mothers would have stood had they been living at the time of the death of their sister, Sarah Narcissa, and as their mothers would have inherited if they had been living, their children, the plaintiffs, must inherit.
It was stated on the argument that this was a new case — "of first impression" — but it seems to us that every principle involved in this case has been elaborately and ably discussed in the opinion of the Court by Judge Battle, concurred in by Chief Justice Nash; and while there is an elaborate and able dissenting opinion by Judge Pearson, the dissenting opinion concedes the contention of the plaintiffs in this case. Clement v. Cauble, 55 N.C. 82. The same doctrine is held in Cromartie v. Kemp, 66 N.C. 382, citing and approving Clement v. Cauble. And the same doctrine is again held in Crump v. Faucett, 70 N.C. 345, citing with approval Clement v. Cauble and Cromartie v. Kemp.
We think this doctrine is settled in this State, that the heirs of deceased collateral relatives represent their ancestors and take (75) what they would have taken, if living. The judgment appealed from must be
Affirmed.