Opinion
No. 33551.
February 6, 1939. Suggestion of Error Overruled March 20, 1939.
1. DESCENT AND DISTRIBUTION.
Intestate's first cousin of the half blood and second cousins of the whole blood were "collateral kindred" within statute providing that there shall not be any representation among collaterals except among descendants of brothers and sisters of intestate (Code 1930, section 1402).
2. DESCENT AND DISTRIBUTION.
The civil law rule relating to descent and distribution is to begin with intestate, ascend from him to a common ancestor, and descend from that ancestor to respective claimants, reckoning a degree for each generation both in the ascending and descending lines.
3. DESCENT AND DISTRIBUTION.
Where intestate's nearest surviving kindred were a first cousin of the half blood and second cousins of the whole blood, first cousin was nearer in degree of kindred and took to exclusion of second cousins (Code 1930, sections 1402, 1403).
APPEAL from the chancery court of Wayne county; HON. D.M. RUSSELL, Chancellor.
C.J. Jones and J.B. Saxon, both of Waynesboro, for appellants.
The Honorable Chancery Court erred under the facts and law, in holding that Mrs. W.D. Turner et al., appellees, were preferred under the facts and law, being of the half-blood only to J.P. Toomey, deceased, and O.M. Toomey, et al., appellants, being descendants of the whole blood to J.P. Toomey, deceased.
The case of Grantham v. Statham, 83 Miss. 176, that the Honorable Chancellor based his decree on has no application to the case at bar, in that case, one Green died in June 1900, intestate, he was unmarried and all the claimants to the deceased Green were the kindred of the whole blood to the deceased Green, and the case at bar is between the kindred of the whole and half blood, in which makes it quite a different case to the case of Grantham v. Statham. We now come to the law of descent and distribution. First, descent of land. There being no descendants or brothers or sisters living, land descends to the descendants of a deceased brother or sister, such descendants, in each instance, to have their deceased parents share, Code 1906, Section 1649. Second, personal estate to descend as real estate. Code of 1906, Section 1653. Third, half-blood. To inherit the same as whole blood. Except that the kindred of the whole blood, in equal degree shall be preferred to kindred of the half blood in the same decree. Code of 1906, Section 1650. Code 1930, Section 1403. The construction of the statute in regard to kindred of the whole and half blood was settled by the Supreme Court of this as early as 1828, in Fatheree v. Fatheree, Walker Rep. 311. It was held that the kindred of the whole blood would be preferred to those of the half blood.
It follows from the view we have taken of the statute that O.M. Toomey et al., appellants, being descendants of the whole blood first cousins to J.P. Toomey, deceased, occupies the same position as their parents, by right of representation and hence that they are entitled to the estate, to the exclusion of Mrs. W.D. Turner et al., appellees, descendant of the half blood to J.P. Toomey, deceased.
Scott v. Terry, 37 Miss. 65; Davidson v. Brownlee, 114 Miss. 398, 75 So. 140; Aycock v. Aycock, 119 Miss. 641, 81 So. 482; Code 1906, Section 1649.
The father and mother of O.M. Toomey et al., appellants being the whole blood first cousins to J.P. Toomey, deceased, if living at the time of the death of J.P. Toomey, deceased, would have taken the entire estate to the exclusion of Mrs. W.D. Turner et al., appellees, being of the half blood first cousins to J.P. Toomey, deceased.
O.M. Toomey et al., appellants being the only descendants of the whole blood to J.P. Toomey, deceased, is entitled to the entire estate of J.P. Toomey, deceased, to the exclusion of Mrs. W.D. Turner et al., appellees, being of the half blood only.
Our present law as to whole and half blood has been a part of our statutory law of descent and distribution since the early history of the state. The same provisions appear in Hutchinson's Code, at page 623, section 50. Early decisions of this court put the construction of this statute at rest. The foregoing interpretation of section 1650, Code 1906, section 1403, Code of 1930, has never been overruled, and as the last expression of this court on the subject.
Aycock v. Aycock, 119 Miss. 641; Scott v. Terry, 37 Miss. 65.
W.M. Hutto, of Waynesboro, for appellee.
Section 1402, Mississippi Code 1930, provides among other things, as follows: "There shall not be any representation, among collaterals, except among the descendants of the brothers and sisters of the intestate."
In this case, there were no brothers and sisters, father or mother, uncle or aunt, living at the time of the death of J.P. Toomey, and there were no descendants from any brother or sister, and no descendants from J.P. Toomey, at the time of his death. Therefore, all claimants, both appellants and Mrs. W.D. Turner, are collateral descendants of J.P. Toomey, deceased.
Section 1403, Mississippi Code 1930, provides that there shall be no distinction, in any case, between the kindred of the whole and half blood, except that the kindred of the whole blood shall be preferred to the kindred of the half blood in the same degree.
Since all claimants in the case are collaterals, none of which take by representation in the case, but will take per capita, and since there is no distinction between the whole and the half blood except in the same degree, it is the appellee's contention that Judge Russell, Chancellor in the lower court, held correctly in declaring that Mrs. W.D. Turner, who is a first cousin of the half blood, is the sole and surviving heir, in preference to the other claimants, who are second and third cousins to deceased, Mrs. Turner being a degree nearer related to J.P. Toomey, deceased, than the other claimants in the cause.
Grantham v. Statham, 83 Miss. 176.
J.P. Toomey, a landowner, died intestate in Wayne County, in 1935. He left surviving him (a) no wife; (b) no child or children; (c) no descendants of a child or children; (d) no brothers or sisters; (e) no descendants of brothers or sisters; (f) no father or mother, and (g) no uncles or aunts. The father of the intestate was Thomas Toomey. Appellee is the daughter of a half-sister of said Thomas. Appellants are the grandchildren of brothers of the whole blood of said Thomas. Thus, according to common parlance, appellee is the first cousin of the half blood of the intestate while appellants are the second cousins of the whole blood, and these were, at the time of the death of the intestate, the nearest surviving kindred.
The argument of appellants is that inasmuch as appellants are the descendants of the first cousins of the whole blood, they take to the exclusion of appellee, who is a first cousin of the half blood. But all the parties hereto are collateral kindred to the intestate, and it is expressly provided by Section 1402, Code 1930, that "there shall not be any representation among collaterals, except among the descendants of the brothers and sisters of the intestate." The statement of the facts has already mentioned that there were no brothers or sisters and no descendants of brothers or sisters. See Grantham v. Statham, 83 Miss. 176, 35 So. 423.
If it be the argument of appellants that second cousins of the whole blood are, in point of actual blood kinship, as closely related as is a first cousin of the half blood, and are, therefore, to be preferred under Section 1403, Code 1930, which provides that "kindred of the wholeblood, in equal degree, shall be preferred to the kindred of the half-blood in the same degree," the argument is still ineffectual. In the only case directly in point, which we have found, Ector v. Grant, 112 Ga. 557, 37 S.E. 984, 53 L.R.A. 723, it was held that a first cousin of the half blood will take in preference of a second cousin of the whole blood; and this is true whether computed according to the canon law, as was done in the Ector Case, or according to the rule of the civil law which, under Section 1403, Code 1930, is used in this State.
The rule of the civil law is to begin with the intestate, and ascend from him to a common ancestor, which in this case would be the grandfather of the intestate, and descend from that ancestor to the respective claimants, reckoning a degree for each generation as well in the ascending as in the descending line. 18 C.J., p. 823. Thus computing, it is at once seen that in point of law a first cousin, although of the half blood, is nearer in degree of kindred than a second cousin of the whole blood.
Affirmed.