Anderson v. Bell

• Decision Date: 06 February 1895
• Parties: ANDERSON et al. v. BELL et al.
• Court: Indiana Supreme Court

140 Ind. 375

39 N.E. 735

ANDERSON et al.

v.BELL et al.

Supreme Court of Indiana.

Feb. 6, 1895.

Appeal from circuit court, Carroll county; A. W. Reynolds, Judge.

Action by Martha E. Bell and others against Agnes E. Anderson and others for the partition of land. From the judgment rendered, some of the defendants and some of the plaintiffs appeal. Affirmed.

John H. Gould and George R. Eldridge, for appellants. McConnell & Jenkines and L. D. Boyd, for appellees.

McCABE, C. J.

A part of the appellees sued a part of the appellants for a partition of certain real estate in Carroll county, making the other appellees defendants, and the other appellants coplaintiffs, with themselves. Upon the issues formed there was a trial by the court without a jury, and at the request of both parties the court made a special finding of the facts, and stated its conclusions of law thereon. The conclusions of law are assigned for error.

As shown by the facts, John B. Anderson died testate on the 1st day of June, 1870, owner in fee simple of the real estate in controversy in this action. Margaret Anderson, a daughter of said John B., by his second wife, died intestate, August 27, 1880, owner in fee simple of said real estate, which she had received by devise from her father, John B. That she left surviving her no father, no mother, no husband, and no children, or their descendants. Robert Anderson, who died long previous to the death of said Margaret, was a son of said John B. Anderson, by his first wife, and consequently was a half-brother of the said Margaret Anderson, of the blood of the common ancestor, John B. Anderson. Robert left surviving him his half-sister, Margaret, and several children, appellees herein, who in this action claim that they are of the blood of John B. Anderson, and are kindred of the half blood to Margaret, and, as descendants of Margaret's deceased half-brother, inherit Robert's interest in Margaret's said real estate. And the trial court so held. This presents the principal legal question in the case, viz. do the descendants of kindred of the half blood inherit equally with kindred of the whole blood? The solution of the question rests upon the statute law of Indiana, for the law of descent is a matter which each state must regulate for itself. Cope v. Cope, 137 U. S. 682, 11 Sup. Ct. 222. Considering the legislation chronologically, we find that the ordinance of congress of July 13, 1787, provided rules of inheritance in the territory of which the state of Indiana was formed, and it was therein provided that there should, “in no case, be a distinction between kindred of the whole and half blood,” and that such law should “remain in full force until altered by the legislature of the district.” Rev. St. 1843, p. 20. The second section of the act to regulate descents, approved January 2, 1817 (the first enactment by the state), provided generally that “brothers and sisters of such deceased person dying intestate, and their descendants,” shall inherit equally. Laws Ind. 1818, p. 183; Rev. Laws Ind. 1824, p. 154. The next act regulating descents was that of January 29, 1831, and there was no change in this respect. Rev. St. 1831, p. 208, § 2. The act of February 17, 1838 (section 2), provided that “if there be no father or mother, then the whole shall be equally divided among the brothers and sisters, or their descendants.” And “that half brothers or sisters, or their descendants shall, if there be brothers or sisters or their descendants alive, inherit, each to the amount of one-half the share of each full brother or sister or their descendants alive, then the half brothers or sisters, or their descendants shall inherit in the same way as if they were full brothers or sisters, or their descendants.” Rev. St. 1838, p. 236, § 2. By the statute of 1843, “kindred of the half blood, and their descendants, shall inherit equally with those of the whole blood in equal degree of consanguinity to the intestate.” Rev. St. 1843, p. 436, § 114. And such was the law until 1852, when the law now in force was enacted, and is section 2472 of the Revised Statutes of 1881 (Burns' Rev. St. 1894, § 2627).

It is contended by the appellants' learned counsel that the revision of 1852, which has been carried forward into that of 1881, made a change in the rule of inheritance, as to kindred of the half blood, so that, since, no kindred of the half blood can inherit unless they are brothers or sisters of the half blood. It is conceded that all kindred of the half blood-that is brothers and sisters of the half blood, and their descendants-could inherit equally with those of the whole, in this state, from the organization of the territory under the ordinance of 1787 up to the revision of 1852, because the previous statutes provided, or had been construed to mean, that kindred of the half blood, and their descendants, should inherit equally with those of the whole blood, and that the provision in favor of the descendants of the half blood was omitted from the revision of 1852. It is contended that such omission evinced an intent to limit the inheritance of the half-blood kindred to half-brothers and half-sisters, and to cut off their descendants. In short, it is contended that a descendant of a half-blood brother or sister is not kindred of the half blood, and hence cannot inherit until the legislature restores the provision in favor of the descendants of the kindred of the half blood.

The solution of the question thus raised depends upon the proper construction of sections 2470, 2472, Rev. St. 1881 (Burns' Rev. St. 1894, §§ 2625, 2627). Counsel concede that these two sections must be construed together, and, as we may properly say, they ought to be construed as if they were but one and the same section. And yet counsel, having made that concession, proceed to build up their whole theory on the absence of the words “their descendants” from the latter section. The first section above provides that “if there be neither father nor mother, the brothers and sisters of the intestate living, and the descendants of such as are dead shall take the inheritance as tenants in common.” Counsel assume, as a foregone conclusion, that the language of the section above quoted excludes brothers and sisters of the half blood. If they are right in this, the court erred in its conclusions of law. But, if they are wrong, then the court did not err. The statute uses the words “brothers and sisters” without qualification or restriction. Webster defines the word “brother” to mean a male person who has the same father and mother with another person, or who has one of them; and the word “sister,” as a female who has the same parents with another person, or who has one of them only. This meaning of the words “brothers” and “sisters” was adopted by this court in construing a similar statute 55 years ago, in Clark v. Sprague, 5 Blackf. 412, 413. This court there said, at pages 414, 415, that: “Our statute of descents and distribution makes no reference to the first purchaser. That statute, or so much of it as is applicable to the present case, is as follows, viz.: That the real and personal estate of any person dying intestate shall descend to his or her children, or their descendants, in equal parts. That is, to the children of a deceased child, the share of their deceased parent; if there be no children, nor their descendants, then to the father; and, if there be no father, then, in equal parts, to the mother, brothers, and sisters of such deceased person dying intestate, and to their descendants. Rev. St. 1831, p. 207. In construing this statute, we are trammeled by no artificial rules. The only question is whether the terms ‘brothers and sisters' necessarily exclude brothers and sisters of the half blood. It is manifest that there is not in the statute any legislative intention expressed to exclude the half blood. If it is excluded, then, it is from general principles of law, not from any positive enactment. According to the uniform construction which the English statute of distributions has received, especially since the decision of the case of Crooke v. Watt, 2 Vern. 124, a brother of the half blood is a brother, within the meaning of the law. That statute directs that the personal estate of an intestate, under certain circumstances, shall be distributed among the next of kin in equal degree. When the next of kin are brothers and sisters, no distinction is made between those of the whole and half blood. Being related to the intestate by blood, the half blood as well as the whole blood are within the degree mentioned in the statute. And in Tracy v. Smith, 2 Lev. 173, it is said that a brother for the half blood is a ‘brother’ as well as a brother of the whole blood. The construction given to that statute shows that, except where an artificial rule of evidence has been introduced for a special purpose, the word ‘brother’ does, by law, mean as well a brother of the half as of the whole blood. Following that construction, and applying the same rules to the construction of our statute, we think the right of the complainants to participate in the distribution of the personal estate of their deceased brother is clearly established. And so we think they are also entitled to a partition of the real estate of the deceased. * * * In deciding the question before us, we are aided by a few decisions which have been made in the courts of our own country. In the case of Gardner...