Gardner's Estate v. Gardner
| Decision Date | 16 December 1912 |
| Docket Number | 2405 |
| Citation | 129 P. 360,42 Utah 40 |
| Parties | GARDNER'S ESTATE v. GARDNER et al |
| Court | Utah Supreme Court |
APPEAL from District Court, Fourth District; Hon. J. E. Booth Judge.
Judicial settlement of the estate of Serena Evenson Gardner.
Neil L Gardner and others appeal from an order distributing the estate.
AFFIRMED.
Harvey Cluff and A. Saxey for appellants.
Jacob Evans for respondent.
This is an appeal from a decree of final distribution.
The question of law which arises upon the decree of distribution is substantially as follows: The decedent, Serena Evenson Gardner, died intestate, leaving her surviving the following children, namely, Henry Gardner, Serenus Gardner, Serena Gardner Andrus, and Annie Francis, all of whom were children by her second marriage. The deceased also was the mother of three other children by her first husband, whose name was Evenson, namely: Even Evenson, Erastus Evenson, and Regina Evenson Gardner. Even Evenson died intestate, leaving as his only heir at law his mother, the decedent. Regina Evenson Gardner also died, leaving surviving her the following children as her only heirs at law, to wit, Neil L. Gardner, Margaret Gardner Evans, Brigham E. Gardner, Ida G. Robertson, Anna S. Stanton, Delilah Gardner Hughes, Edna G. Brockbank, and Effie Gardner Barclay, all of whom are grandchildren of the decedent. The decedent, therefore, had three children by her first husband, two of whom are dead, and four by her second husband; all of the latter surviving her. In addition to the foregoing children, she also left surviving her the grandchildren above mentioned. The district court, in making the final distribution of the decedent's estate, distributed to each one of the four children, the issue of the second marriage, one-sixth, to Erastus Evenson, the only surviving child of the first marriage, one-sixth, and the remaining one-sixth in common to the grandchildren as the representatives of their deceased mother, Regina Evenson Gardner. The grandchildren and Erastus Evenson appeal.
It is conceded that under the laws of succession in force in this state the decedent, as the mother of Even Evenson, was his only heir at law, and thus succeeded to all of his estate at his death. It is further conceded that Even Evenson acquired all of his property by purchase. It is also uncontroverted that the decedent left some property or estate in addition to that which she inherited from her son, and that such property was acquired by purchase.
The appellants contend that the court erred in distributing any of the estate to the four children the issue of decedent by her second husband. The contention of appellants' counsel, given in their own language, is as follows:
The contention is that the grandchildren of the decedent, as heirs and descendants of the daughter by the first marriage, have preference over the decendent's children by her second husband. It is insisted that such is the conclusion reached by the territorial Supreme Court in Amy v. Amy, 12 Utah 278 at 333, 42 P. 1121, and in the cases there cited. We shall not now stop to analyze the facts in that case. It must suffice to say that the Amy Case in no way controls the question involved in the case at bar. Counsel, however, vigorously contend that under the provisions of Comp. Laws 1907, sec. 2840, their contention must prevail. That section reads as follows:
"Kindred of the half blood inherit equally with those of the whole blood in the same degree, unless the inheritance comes to the intestate by descent, devise, or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor must be excluded from such inheritance."
That section has been in force in this jurisdiction at least since February, 1876. (Comp. Laws 1876, p. 276.) The section was carried into the compilation of 1888. (2 Comp. Laws 1888, sec. 2749, p. 125.) And from thence into the Revised Statutes of 1898, of which revision it was section 2840, the same number as in the present compilation above referred to. It is true that in Amy v. Amy, supra, the court referred to said section, and, in part at least, based its ruling thereon. The court in the Amy Case, however, did not construe, nor attempt to construe, the meaning of the phrase "of the blood," as the same occurs in the foregoing section. That phrase, it is generally, if not universally, held, includes the half blood as well as the whole blood. If, in the case at bar, counsel's contention were applied, it is not easy to see how, under our statute of succession, those appellants, who are the grandchildren of the decedent, could inherit any part of the property that she inherited from her son, Even Evenson, who was the ancestor of the mother. As to him, the appellants aforesaid are all of the half blood, and not of the whole blood. True, counsel insist that since these grandchildren are the issue of Even Evensong's sister, who was of the full blood, therefore they take as her representatives, and as such are preferred. There is absolutely nothing in our statute that authorizes such a conclusion, while every rule of construction leads to a contrary result. The cases cited by the court in Amy v. Amy directly pass upon and construe that phrase where it occurs in statutes precisely like ours, and in doing so also arrive at a conclusion diametrically opposed to the contention of counsel as stated above.
The following cases are cited and relied on in support of the conclusion reached in Amy v. Amy, supra: Gardner v. Collins , 27 U.S. 58, 2 Pet. (U.S.) 89, 7 L.Ed. 347; Cutter v. Waddingham, 22 Mo. 206; Valentine v. Wetherill, 31 Barb. 660; West v. Williams, 15 Ark. 682; Wheeler v. Clutterbuck, 52 N.Y. 70; White v. White, 19 Ohio St. 531.
Referring to these in the order in which they are cited we find that in 2 Pet. 58-92 (7 L.Ed. 347), it is said:
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