Opinion
(December Term, 1860.)
Under the statute of distributions in this State, Rev. Code, chap. 64, secs. 1 and 2, representation is not admitted among collateral kindred after brothers' and sisters' children, and, consequently, uncles and aunts of an intestate take to the exclusion of the children of a deceased uncle.
CAUSE removed from the Court of Equity of WASHINGTON.
The bill is filed by the administrator of Otis W. Chesson, and prays the instruction of the Court as to his duty in the administration of the estate. He sets out that his intestate left him surviving an uncle, one Nathaniel C. Chesson, an aunt, Sarah Chesson, who has since married one Swain, and a cousin, John B. Chesson, Jr., son of a deceased uncle. The defendants in this suit are the uncles and aunts and the said John B. Chesson, Jr., who claims an equal share with his uncle and aunt in the estate of the intestate. The cause being set for (147) hearing upon bill and answer, was transferred to this Court by consent.
H. A. Gilliam, for the plaintiff.
Winston, Jr., for the defendant.
The bill is filed for the sole purpose of obtaining the decision of the Court upon the question whether, in the distribution of the personal estate of an intestate, the son of a deceased uncle can, by right of representation, claim an equal share with an uncle and aunt, who are the nearest of kin to the intestate. This question is settled by the express words of our act of distributions, which says that in the case of an intestacy, "if there be neither widow nor children, nor any legal representative of children, the estate shall be distributed equally to every of the next of kin of the intestate, who are in equal degree, and to those who legally represent them," with a proviso "that in the distribution of the estate there shall be admitted among the collateral kindred no representative after brothers' and sisters' children"; see Rev. Code, ch. 64, secs. 1 and 2. There was a similar provision in the English statute of distributions of the 22d Charles II, and it has always been held that among the uncles and aunts and other more distant kindred of an estate, there could be no right of representation allowed; 2 Williams on Executors, 930. In the rules of the descent of real estate, the right of representation is indefinite, as well among collateral as lineal kindred; see Rev. Code, ch. 38, sec. 1, rule 3. This has always been the law, both in England and in this State (see Clement v. Cauble, 55 N.C. 82; Haynes v. Johnston, 58 N.C. 124), and in consequence of it the real estate of an intestate will often devolve, in part, upon a person who can not take any portion of his personal estate. The law upon the subject has been so long and so firmly established that it is unnecessary for us to attempt an explanation of the reasons upon which it was originally founded.
PER CURIAM. Decree accordingly.
Cited: Nelson v. Blue, 63 N.C. 660.
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