Brown v. City of Baraboo

• Decision Date: 03 April 1895
• Citation: 62 N.W. 921,90 Wis. 151
• Parties: BROWN v. CITY OF BARABOO.
• Court: Wisconsin Supreme Court

90 Wis. 151

62 N.W. 921

BROWN

v.CITY OF BARABOO.

Supreme Court of Wisconsin.

April 3, 1895.

Appeal from circuit court, Sauk county; Robert G. Siebecker, Judge.

Action of ejectment by William Brown against the city of Baraboo. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action of ejectment for the recovery of the undivided four-sevenths of an undivided half of a certain parcel of land in the city of Baraboo. George W. Brown died, intestate, seised of the entirety of the premises, December 15, 1847, and without any children. Both his father, Chauncey Brown, and his mother, Clarissa Brown, survived him, and the latter predeceased her husband, dying, intestate, February 26, 1854. The plaintiff, also a son of the said Chauncey and Clarissa Brown, claims the interest in the premises for which he sues as an heir of his deceased mother, and as grantee of the interest of three others of her heirs. Having produced evidence to show that he was the owner of four-sevenths of the interest in the premises, if any, of which his mother died seised, he claimed that upon the death of George W. Brown, intestate, the entirety of the premises descended equally to his said father and mother, as his next of kin, computing by the rules of the civil law. After the plaintiff had rested his case, the court gave judgment of nonsuit against the plaintiff, upon the ground that George W. Brown's mother, under whom alone the plaintiff claimed title, took no interest whatever in the premises, and that his father inherited the entirety. From this judgment the plaintiff appealed.Wm. Brown and Bentley & Bentley, for appellant.

R. D. Evans, for respondent.

PINNEY, J. (after stating the facts).

1. It was provided by the statute of descent in force at the time of the death of George W. Brown that “when any person shall die seised of lands, tenements or hereditaments not by him devised, * * * when there are no children of the intestate, the inheritance shall descend equally to the next of kin in equal degree, and those who represent them; computing by the rules of the civil law.” Ter. St. 1839, p. 184, § 38. Consanguinity, it is said, is either lineal or collateral. Lineal consanguinity is that which subsists between persons of whom one is descended in a direct line from the other, as between an intestate and his father or grandfather, etc., in the direct ascending line, or between him and his son or grandson, etc., in the direct descending line; and every generation in lineal, direct consanguinity constitutes a different degree, reckoning either upward or downward. This method of computation of degrees of kindred in the direct line obtains as well in the civil and canon law as in the common law. 2 Chit. Bl. 203. The difference in the method of computation of degrees exists only in relation to collateral consanguinity. As George W. Brown left no children, his father and his mother were his next of kin, and in the first degree. They stood as such in equal degree, and the statute declared, in substance, that his inheritable property should descend to them equally, as his next of kin. The common-law canon of inheritance, by which males were preferred to females in the same degree, was abrogated by this statute. “It is a general rule that those who take property as a class of persons described, where there is nothing in the law making the appropriation to distinguish their respective rights, take in equal shares.” Reeve, Des. 105, 123; Knapp v. Windsor, 6 Cush. 156;Snow v. Snow, 111 Mass. 390;Balch v. Stone, 149 Mass. 42, 20 N. E. 322. The statute leaves no question, but declares in express terms that “the inheritance shall descend equally to the next of kin in equal...