Opinion
13583
February 14, 1933.
Before TOWNSEND, J., Richland, May, 1932. Affirmed.
Action by the Equitable Trust Company of Columbia, administrator of the estate of Z.R. Epling, deceased, against T.W. Epling and others. From the decree, defendant named appeals.
The decree of the Probate Judge is as follows:
This action was originally commenced by Equitable Trust Company of Columbia, as administrator of the estate of Z.R. Epling, deceased, petitioner, against the defendants, T.W. Epling, Mary Ann Douglas Miller, H.G. Douglas, J. Fred Douglas, Chas. S. Douglas, Ruth May Trout Feathers, Roy C. Epling, Louise Epling Haag, John M. Oakley, Inc., J.A. Barrington, Swift Investment Company, Oscar La Borde, Ollie V. Smith, the Homestead Bank, Job E. Corley and P.C. Price Co., and seeks the determination of the Court as to whether or not a certain benefit of insurance in Atlantic Coast Line Relief Department in the sum of $1,000.00 becomes a part of the estate of Z.R. Epling, deceased, and therefore to be administered upon in the usual way of one dying intestate; or, if not a part of the estate, to whom it is payable under its terms. The terms of the certificate will be hereinafter set out in full.
The summons and petition were duly and regularly served on all of the defendants. The defendants Mary Ann Douglas Miller, H.G. Douglas, J. Fred Douglas, Chas. S. Douglas, Ruth May Trout Feathers, and Swift Investment Company, answered; the remaining defendants being in default, as shown by affidavit of default in the cause.
T.W. Epling also caused to be served a summons and petition, wherein he set forth certain ones alleged to be heirs at law of Z.R. Epling, intestate, but alleged that the certificate of insurance in question should be paid over to him as the next of kin within the meaning of the provisions of the policy using that term. The two matters were heard together.
All the parties being before the Court, the testimony was taken, and the evidence shows that the deceased, Z.R. Epling, was, during his lifetime, employed by the Atlantic Coast Line Railway Company, and that he was entitled to the sum of $1,000.00 benefit from the relief department of the said railway company; that said Atlantic Coast Line Railway Company, relief department, issued to the said Z.R. Epling its certificate in the following terms: "Unless I shall hereafter otherwise designate in writing, with the approval of the Superintendent of the Relief Department, death benefit shall be payable to my wife (husband), if I am married at the time of my death; or if I have no wife (husband) living, then to my children collectively, each to be entitled to an equal share, including, as entitled to the parent's share, the issue of any deceased child; or, if there be no children or such issue living, then to . . . . . . . if living; and if not living, then to my father and mother jointly, or the survivor; or, if neither be living, then to my next of kin, payment in behalf of such next of kin to be made to my legal representatives; or if there be no such next of kin, the death benefit shall lapse, and the amount thereof shall remain as a part of the Relief Fund, without claim for the same."
The deceased died without having designated in writing a person to receive the benefit under this certificate. He had never married, and died leaving no children, no parents, nor issue of children, and hence, under the terms of the policy or certificate, the proceeds thereof would go to his "next of kin." The deceased died, leaving a brother, T.W. Epling; Roy C. Epling and Louise Epling Haag, a niece and nephew, the children of a predeceased brother, Chas. R. Epling: Mary Ann Douglas Miner, Fred Douglas, Harry G. Doulas, and Chas. Sinclair Douglas, nieces and nephews, being children of a predeceased sister, Etta Epling Douglas; and a niece, Ruth May Trout Feathers, a daughter of a predeceased sister, Hattie Epling Trout.
It is conceded by the parties to this action that the proceeds of this benefit certificate would not go into the estate and become a part thereof subject to the payment of debts, but, notwithstanding this concession, I am of the opinion, and I feel it is not necessary to cite authorities to sustain it, that under the terms of this instrument the proceeds therefrom would not go to the estate of the deceased, but would go to those who, by its terms, are entitled to it, freed from claims for debts.
The question therefore to be decided it, Who are the "next of kin" within the terms of the benefit certificate?
The brother, T.W. Epling, contends that he is the next of kin to the exclusion of his nieces and nephews, and is therefore entitled to the entire proceeds of the certificate, while, on the other hand, the nieces and nephews, who are respondents in this action, take the position that the term "next of kin," as used in the benefit certificate, is not to be determined by the civil or Roman rule, but is to be determined by the statute of distributions of this State, and that they would be entitled to the share that their parents would have taken had their parents, who were brothers and sisters of deceased, survived the deceased.
We find in 14 R.C.L., § 539, pages 1371 and 1372, in construing a policy of benefit insurance, the same rules that are used in construing wills should be followed, that authority saying: "Due to the fact that an insurance policy is a contract, it would seem that it should be construed according to the rules applicable to contracts, even as to those provisions designating the beneficiary, but with reference to the beneficiary it has frequently been said that a policy of insurance is in the nature of a testament, and although not a testament, in construing it the Courts will, so far as possible, treat it as a will."
Quoting from the same authority, we find that it holds: "It has also been said that rules for interpreting the will of a testator may guide, as far as they are applicable, in ascertaining the legal effect of the clause in the life policy designating the beneficiaries. The difference in the cases consists in the fact that the interest vests under the policy at once upon its issue, but does not vest under the will until the death of the testator."
In Continental Life Insurance Company v. Palmer, 42 Conn., 60, 19 Am. Rep., 530, that Court had before it for consideration a policy or contract of insurance for the construction of its terms, and in passing upon its terms said: "This instrument, being testamentary in its nature, should be interpreted by the same rules. Therefore, as in wills of doubtful meaning, one construction being in harmony with the statute and the other contrary to it, preference is given to the former, so this contract should receive an interpretation, if possible, which will dispose of the fund according to the law of descent. * * *"
In Supreme Council Catholic Knights of America v. Densford et al. (Ky.), 56 S.W. 172, 49 L.R.A., 778, that Court held that the share of one of the beneficiaries of a benefit certificate who dies, leaving issue, during the lifetime of the insured, is in the nature of a testamentary gift, and will therefore pass to such issue in accordance with the rule as to a devise or legacy under the statute of Kentucky.
In Hooker v. Sugg, Administrator, 102 N.C. 115, 8 S.E., 919, 921, 3 L.R.A., 217, 11 Am. St. Rep., 717, the Court said, in speaking of a policy of insurance:
"The terms of the policy constitute a contract of the company to pay the specified amount to the beneficiaries designated, and create direct legal relations between them. How could this be in regard to the wife, no longer living? and how can it be supposed that he intended to provide for her? The new policy supersedes, but does not continue in force, that whose place it takes, and must be construed in accordance with the then existing conditions. * * *
"In Conigland v. Smith, 79 N.C. 303, the relations of a parent who insures his own life for the benefit of his children are deemed analogous to those assumed when providing for them by a testamentary disposition of his property, both being posthumous benefits secured, and hence the rules for interpreting the will of a testator may guide, as far as they are applicable, in ascertaining the legal effect of this clause in the policy. The difference in the cases consists in the fact that the interest vests under the policy at once upon its execution, while it does not under the will until the death of its maker. * * *
"So, if `children' be designated in a life policy as beneficiaries, the interest vesting at once is in such as then meet the description, and is not divested in favor of survivors by a death afterwards."
Thus it can be seen that the greater weight of authority is to the effect that, in construing the meaning of the term "next of kin" in a policy or contract of insurance, we should as nearly as possible follow the rules laid down for the interpretation of a will or instrument of a testamentary nature.
What is the meaning of the words "next of kin" as used in the benefit certificate in question? Did it mean the nearest in blood relation to the deceased, to be determined by the civil or Roman rule, or did it have reference to "next of kin" as is comprehended by the statute of distributions?
Nowhere have I been able to find where the Courts of this State have defined the meaning of "next of kin." Nor has any authority from the Courts of this State been cited by counsel in their brief.
In Johnson v. Johnstone, Executor of James A. Johnson, 12 Rich. Eq., 259, our Court had before it a will, in which a bequest was made to the testator's executor in trust for the testator's "legal representatives and next of kin." The Court did not undertake to construe the meaning of "next of kin," saying that under the questions presented it was not necessary to pass on the question as to who was the next of kin.
In disposing of the term "legal representatives," the Court had this to say:
"* * * We are not surprised, therefore, to find in the books evidence of a strong leaning, by Judges of repute, to the construction of such words as are in question, (and which unquestionably point to succession or representation), the sense of next of kin, or of those who would be distributees by a Statute of Distributions. Nor are we surprised to find, also, instances even where it has been adjudged that executors and administrators are the legatees, that nevertheless they should hold in trust for the benefit of those who fulfill the character of distributees under statute. * * *
"Where nothing in the testament forbids it, there is much reason, in this State, to construe `representatives' or `legal representatives' to indicate those who would succeed to, and be among, the distributees of an estate in case of intestacy. Our Statute of Distributions is familiar to the people beyond any other statute, perhaps, and furnishes the rule of succession very generally approved, as to all or some of an estate which is to descend. In the second category of our Statute of Distributions the language is, `the lineal descendants of the intestate shall represent their respective parties.' * * * Such legislative example in an old and familiar statute — one so often spoken of, in common parlance, as providing an equitable disposition of an intestate estate — gives aid to the idea that `legal representatives' in the case before us may well be construed to mean such as would take Johnson's estate in case of intestacy."
Thus it can be seen that our Court, where the terms are doubtful, applies the statute of distributions (Code 1932, § 8905 et seq.), where the same can be made applicable. In the decision referred to, we note that the Court has said that the statute of distributions is familiar to the people, and furnishes the rule of succession very generally approved. Likewise it could be said that, because of the familiarity of the statute of distributions, which is not confined alone to our State, but has been adopted by practically every State in the Union, where a contract of insurance is made, bearing in mind that it is to take effect after the death of the insured, it is to be presumed that the parties to that contract of insurance had in mind the statute of distributions when the term "next of kin" was used. Had the parties to the contract intended that the proceeds should not go to the next of kin, in accordance with the statute of distributions, they could very easily have limited the provision in the contract for it to go to a designated class beyond the class that it had already designated without having used the term "next of kin." Had it been the intention of the makers of the contract of insurance that the proceeds therefrom was to go to brothers and sisters or brother or sister solely after the failure of the classes named in the certificate, this could have been easily provided for.
Webster's New International Dictionary defines "next of kin" as follows: "Law, lit.: the person or persons in the nearest degree of relationship by blood to a person; hence, those blood relatives (often called statutory next of kin) of a person who in case of his death intestate will be entitled by virtue of the Statute of Distributions to share in his estate. In England `next of kin' is taken in the literal sense, as in the construction of wills and settlements, except when the context or circumstances show that the statutory next of kin are intended. This is also the case in some of the United States, as in Massachusetts, while in others, as New York, the term seems to be equivalent to `statutory next of kin' unless the context shows some other intention. The husband and wife are not included, except as the term is rarely construed to include them where this is necessary to give effect to the intention of the statute."
In Johnson v. Supreme Lodge, Knights of Honor, 53 Ark. 255, 13 S.W. 794, 8 L.R.A., 732, in determining who was entitled to share in the benefit of a certain certificate of insurance, in which the beneficiary was designated as the "heirs" of the insured, that Court said:
"Where there is no context to explain it [that term] means those who would, under the Statutes of Distribution, be entitled to the personal estate of the insured."
"The first question presented for our consideration is, Who are meant by the word `heirs' in the certificate in controversy? It is a technical word. When used in any legal instrument, and there is no context to explain it, as in this case, it should be understood in its legal and technical sense. * * *
"At law it was used to designate the persons on whom an inheritance in real estate was cast by the law on the death of the ancestor. Originally, it could not be used to designate those on whom the goods or chattel property were cast, because the law cast them upon no one. * * * But, since the enactment of Statutes of Distribution, it has often been used in gifts and bequests of personal property to designate the donee or legatee. As to its meaning when used in this connection, Courts are not in harmony, and there is much confusion and conflict in the decisions. No useful purpose can be served by a review of the cases upon the question in this opinion. Suffice it to say that the weight of authority holds that the word `heirs,' when used in any instrument to designate the persons to whom personal property is thereby transferred, given or bequeathed, and the context does not explain it, means those who would, under the Statute of Distributions, be entitled to the personal estate of the persons of whom they are mentioned as heirs in the event of death and intestacy."
In supporting the foregoing conclusion, the Court, among other authorities, cites Tillman v. Davis, 95 N.Y., 17, 47 Am. Rep., 1.
In Tillman v. Davis, supra, we find this expression: "The primary meaning in the law of the word `heirs' is the persons related to one by blood, who would take his real estate if he died intestate, and the word embraces no one not thus related. It is not strictly proper to designate persons who succeed to the personal estate of an intestate. The proper primary signification of the words `next of kin' is those related by blood, who take the personal estate of one who dies intestate, and they bear the same relation to personal estate as the word `heirs' does to real estate. The words `heirs' and `next of kin' would not ordinarily be used by any testator to designate persons who were not related to him by blood."
In Hubbard, Price Co. v. Turner et al., 93 Ga. 752, 20 S.E., 640, 30 L.R.A., 593, in determining who was entitled to the proceeds of a policy of insurance, where under the terms it was made payable to the heirs or assigns of the assured, that Court said: "The word `heirs,' in a policy of life insurance payable to the `heirs or assigns' of the assured after his death, he never having had a wife or child, is to be construed as meaning his next of kin according to the statute of distributions, which in Georgia, when the decedent leaves no widow, is the same as the statute of descent or inheritance. Although the heirs, as beneficiaries of the policy, are to be ascertained by reference to the statute, they become beneficiaries, and take their interest, by virtue alone of the contract in their behalf embraced in the policy, and not in any respect by virtue of the statute."
Thus it can be seen that, where the term "heirs" is used in a policy of insurance, which is personalty, or in a will disposing of personalty, the Courts defined that term as being tantamount to "next of kin" according to the statute of distributions. Surely if the word "heirs," when applied to disposition of personal property, is construed as meaning "next of kin" according to the statute of distributions, then if in an instrument the words "next of kin" are used, it would be only logical to say that that term was used with reference to its meaning under the statute of distributions.
By reference to the statute of distributions of this State, applying to intestate's estate, the same being Section 8906, Code of Laws 1932, we find under Subdivision 3 thereof that: "If the intestate shall not leave a lineal descendent, father or mother, but shall leave a widow and brothers and sisters, or brother or sister of the whole blood, the widow shall be entitled to one moiety of the estate, and the brothers and sisters, or brother or sister, to the other moiety as tenants in common. The children of a deceased brother or sister shall take among them respectively the share which their respective ancestors would have been entitled to had they survived the intestate."
In Subdivision 7 of the statute of distribution, we find "If the intestate shall leave no widow, the provision made for her shall go as the rest of the estate is directed to be distributed in the respective clauses in which the widow is provided for."
Under Subdivision 6 of the same statute, provision is made in the event that the party dying intestate leaves no lineal descendant, father, mother, brother, or sister of the whole blood, nor child of such brother or sister of the whole blood, nor brother or sister of the half blood, or lineal ancestor, then in that event, if there is a widow, the widow shall take two-thirds, and the remainder shall descend to the next of kin. Therein is set forth the manner of determining who are the "next of kin."
I am inclined to believe that the words "next of kin" have been given a technical meaning by the statute of distributions, and that in the construction of instruments involving those words they shall be taken as having a technical meaning. I therefore find, and hold, that there is nothing in the context of the certificate of insurance by way of explanation that will show that the term used meant other than the next of kin according to the statute of distributions, and that the beneficiary under the policy of Z.R. Epling is to be determined by our statute of distributions. Therefore the proceeds from said benefit certificate should be distributed as follows: One-fourth thereof to T.W. Epling; one-fourth thereof to Roy C. Epling and Louise Epling Haag, jointly; one-fourth thereof to Mary Ann Douglas Miller, Fred Douglas, Harry Douglas and Chas. Sinclair Douglas, jointly; and the remaining one-fourth thereof to Ruth May Trout Feathers.
The terms of the benefit certificate provided that the same should be paid over to the legal representative, meaning thereby the administrator of the estate, and, acting thereunder, the Relief Department of the Atlantic Coast Line Railway Company caused the proceeds thereof to be paid over to Equitable Trust Company of Columbia, the duly appointed administrator. I am therefore of the opinion that the administrator is entitled to the commissions allowed by law, and that the same should be deducted from the proceeds of the benefit certificate before the distribution of the same is made in accordance with this decree. It is therefore ordered, adjudged, and decreed that the proceeds of the benefit certificate issued by the Relief Department of Atlantic Coast Line Railway Company, upon the life of Z.R. Epling, be declared not subject to the debts of the estate of Z.R. Epling, but that the same be distributed as follows:
(1) That the usual commission allowed by law to administrators be deducted from the proceeds of said certificate and paid to the administrator.
(2) That, after the payment of the commissions above provided, the remainder of the proceeds be distributed as follows: To T.W. Epling, one-fourth part thereof; to Roy C. Epling, one-eighth part thereof; to Louise Epling Haag, one-eighth part thereof; to Mary Douglas Miller, one-sixteenth part thereof; to Fred Douglas, one-sixteenth part thereof; to Harry G. Douglas, one-sixteenth part thereof; to Chas. Sinclair Douglas, one-sixteenth part thereof; and to Ruth May Trout Feathers, one-fourth part thereof.
It is further ordered, adjudged, and decreed that, upon the administrator complying with the terms of this decree, and further administering upon the estate as required by law, they be discharged as such administrator.
Given under my hand and the seal of this Court of Probate, this 17th day of May, 1932.
Messrs. D.W. Robinson and D.W. Robinson, Jr., for appellant, cite: Devise to next of kin creates a joint tenancy: 182 Mich., 807; 148 N.W., 970; 126 N.W., 632; 28 L.R.A. (N.S.), 479; 22 N.E., 1003; 5 L.R.A., 690; 143 A., 121; 59 A.S.R., 65; 10 N.E., 758; 292 Ill., 270; 126 N.E., 537; 11 A.L.R., 315; 151 N.E., 69; 22 Brev., 160; 2 Des., 210; 12 Rich. Eq., 259; 84 S.C. 148; 65 S.E., 1044; 126 S.C. 346; 120 S.E., 64.
Messrs. Thomas, Lumpkin Cain, for Equitable Trust Company of Columbia.
Messrs. F. Ehrlich Thomson and Benet, Shand McGowan, for other respondents, cite: Next of kin are those entitled to take under Statute of Distribution: 115 A., 626; 20 A.L.R., 351; 236 P., 427; 138 P., 790; 265 P., 1045; 232 P., 428; 173 P., 831; 57 F., 699; 21 A.L.R., 818; 81 P., 205; 6 Ann. Cas., 191; 194 F., 387; 126 N.E., 886; 11 A.L.R., 317. Next of kin and heirs at law must be ascertained by resorting to Statute of Distribution: 145 S.C. 549; 141 S.E., 726; 162 U.S. 439; 40 L.Ed., 1032; 16 Sup. Ct., 853; 19 N.E., 213; 26 N.E., 1112; 27 A., 77; 28 A., 537; 72 N.Y., 408.
February 14, 1933. The opinion of the Court was delivered by
The very clear decree of Hon. G.D. Bellinger, Probate Judge of Richland County, affirmed by his Honor, Circuit Judge Townsend, states fully the facts of this cause, and decides correctly, in our opinion, the one legal question involved in the appeal. Let it be reported.
Because of the zeal and earnestness displayed by counsel for the appellant, both in his brief and in his argument at the bar of this Court, wherein he has presented strong reasons to support his view, we have given careful consideration to the cause, and take the opportunity to add a few observations and cite additional authorities to sustain the decree appealed from.
Counsel for both sides, as well as the Probate Judge, the Circuit Judge, and ourselves, have been unable to find, after much research, a decision of our appellate Court which appears conclusive of the issue to be determined. The cases cited in the appellant's brief, Shaffer v. Nail, 2 Brev. (4 S.C. L.), 160; Karwon v. Lowndes, 2 Desaus. (2 S.C. Eq.), 210; Johnson v. Johnstone, Exr., 12 Rich. Eq. (33 S.C. Eq.), 259, as being "enlightening" on the subject, and tending to show that the view contended for is correct, do not, in our opinion, support the position taken. Other decisions, namely, those of National Union Bank v. McNeal, 148 S.C. 30, 145 S.E., 549; Gibson v. Rikard, 143 S.C. 402, 141 S.E., 726; Dukes v. Faulk, 37 S.C. 255, 16 S.E., 122, 34 Am. St. Rep., 745; Evans v. Godbold, 6 Rich. Eq. (27 S.C. Eq.), 26; Seabrook v. Seabrook, McMul. Eq. (16 S.C. Eq.), 206; and Templeton v. Walker, 3 Rich. Eq. (24 S.C. Eq.), 550, 55 Am. Rep., 646, may be also somewhat "enlightening" to sustain the Probate Judge's decree.
But none of these cases, either those cited by appellant's counsel or those which we have added, really touches the question before us. Indeed, they are so far removed from the question that it seems useless to review them, or to refer to their holdings, or any obiter dicta contained therein. All of these decisions are readily accessible to the few who may be interested in pursuing a study of the subject here involved.
Since the words "next of kin" have appeared hundreds of times in wills in this State, one, at first, may be led to wonder why our Court of last resort has not at some time been called upon to say definitely what they mean. On reflection, however, we think there is little need to speculate as to the reason why. We think clearly it is due to the fact that our people, as well as the bench and bar, long ago accepted the view that, when those words are used in a testamentary instrument, they refer, without doubt, to the "distributees" as classified in our statutes relating to descent and distribution. We must feel that, if there had been any serious doubt as to the meaning of the term "next of kin," at some time or other, within the past one hundred years, for more than which time the right of primogeniture has not existed, and the present laws as to descent and distribution have been of force, some "nearest of kin" would have asked the Court to pass specifically upon the meaning of the words "next of kin."
The several cases from jurisdictions other than our own, cited in the appellant's brief, do support the position he urges here. It is unnecessary to discuss them. They have followed the English rule, recognized in several of the American states, notably in Massachusetts. The general rule, however, in America is, from the information we have obtained, to the contrary, and supports the conclusion of the Probate Judge.
In the quotations we make, we italicize certain expressions.
" In the United States it has been very generally held that the term `next of kin', when unexplained by the context, means next of kin according to the statute of distributions. But in England the rule is otherwise, and the English rule has been followed by some of the cases in the United States. But even in England, where it appears by other words that reference is had to the statute of distributions, `next of kin' is held to be equivalent to `next of kin under the statute.'" 21 A. E. Encyclopedia of Law (2d Ed.), 539.
"In the absence of a contrary intention the term `next of kin' of the testator or another means the nearest blood relation to the testator or such other; and unless the context shows a different intention, the term ordinarily means next of kin according to the statute of distributions, particularly where the statute is referred to in connection with such term." 40 Cyc., 1466.
" Some cases have held that the term `next of kin,' when unexplained by the context, means next of kin according to the statute of distributions, but the rule is not always followed. Where it appears by other words that reference is had to the statute of distributions, `next of kin' is held to be equivalent to `next of kin under the statute.'" 46 C.J., 475.
" The proper primary signification of the words `next of kin' is those related by blood, who take the personal estate of one who dies intestate, and they bear the same relation to personal estate as the word `heirs' does to real estate. It seems, however, that the words `next of kin' in a will mean the nearest blood relations and not all those who would take under the statute of distributions." 28 R.C.L., 254.
The principle declared in the italicized language in the quotation from Ruling Case Law seems to be the rule generally followed, and is based on decisions from New Hampshire and New York. The rule stated in the language in the quotation, which we have not italicized, is the result of declarations made in cases from Massachusetts and Michigan. See notes 16 and 17, 28 R.C.L., 254.
In the case of Close v. Benham, 97 Conn., 102, 115 A., 626, 628, 20 A.L.R., 351, decided as recently as 1921, Mr. Chief Justice Wheeler, for the Supreme Court of Connecticut, said: "In the absence of an indicated intent, the policy of the law requires that the distribution to the next of kin should follow the statutory rule of distribution. We have not heretofore decided the point; the better reason appears to us to construe `next of kin' to mean those who would be entitled to take under our statute of distributions."
In determining the meaning of the words "next of kin," contained in an Act of Congress, Mr. Chief Justice Fuller, for the Federal Supreme Court, used this language: "And we are of opinion that Congress, in order to reach the next of kin of the original sufferers, capable of taking at the time of distribution, on principles universally accepted as most just and equitable, intended next of kin according to the statutes of distribution of the respective states of the domicile of the original sufferers. In all the states real estate descends equally to the children of the decedent, and to the issue of deceased children taking per stirpes, and in most of them personal estate is distributed in the same manner, the variations being immaterial here." Blagge v. Balch, 162 U.S. 439, 16 S.Ct., 853, 858, 40 L.Ed., 1039.
In the absence of any decision of our appellate Courts holding the opposite, we are constrained to follow the authorities cited by the Probate Judge, and those from which we have quoted herein, rather than to fall in line with the English rule, to which the Courts of Massachusetts and a few other states, however highly we may regard those Courts, have seen proper to commit themselves. The reasoning of the decisions, which we prefer as guides, is more harmonious, we think, with the spirit of our own laws and decisions which, for a century, have tended to favor a division of estates and property in a manner more equable than that recognized in the common law of England. We are further inclined, also, to this determination, for the reason that it accords, not only with the belief of our people as to what the law is, but to their feeling that so it should be.
The decree, appealed from, is affirmed.
MESSRS. JUSTICES STABLER and BONHAM and MR. ACTING ASSOCIATE JUSTICE G.B. GREENE concur.